Parker v. State

• Decision Date: 20 April 1983
• Docket Number: No. 58329,58329
• Citation: 649 S.W.2d 46
• Parties: James Ray PARKER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 46

649 S.W.2d 46

James Ray PARKER, Appellant, v. The STATE of Texas, Appellee.

No. 58329.

Court of Criminal Appeals of Texas,

En Banc.

April 20, 1983.

Michael E. Grimes, Round Rock, for appellant.

Edward J. Walsh, Dist. Atty., Georgetown, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Douglas M. Becker, Leslie A. Benitez, Asst. Attys. Gen., Austin, for the State.

Before the court en banc.

OPINION ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

ONION, Presiding Judge.

This appeal stems from a conviction for burglary of a habitation with intent to commit rape. Punishment, enhanced under V.T.C.A., Penal Code, § 12.42(c), by allegation and proof of a prior felony conviction, was assessed by the jury at ninety-nine (99) years. On original submission the conviction was affirmed. This court overruled, inter alia, appellant's four grounds of error contending the trial court reversibly erred in refusing to suppress the testimony before the jury of Dr. John Holbrook, a psychiatrist, who testified for the State as a rebuttal witness on the issue of insanity as a defense at the guilt stage of the trial. See Parker v. State, 594 S.W.2d 419 (Tex.Cr.App.1980).

A writ of certiorari was granted by the United States Supreme Court, our judgment was vacated and this case remanded for further consideration in light of Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). See Parker v. Texas, 453 U.S. 902, 101 S.Ct. 3134, 69 L.Ed.2d 988 (1981). This non-capital burglary conviction was remanded in company of a number of capital murder convictions where the death penalty was imposed. Wilder v. Texas, 453 U.S. 902, 101 S.Ct. 3133, 69 L.Ed.2d 987 (1981); Armour v. Texas, 453 U.S. 902, 101 S.Ct. 3133, 69 L.Ed.2d 987 (1981); Garcia v. Texas, 453 U.S. 902, 101 S.Ct. 3133, 69 L.Ed.2d 988 (1981); Simmons v. Texas, 453 U.S. 902, 101 S.Ct. 3134, 69 L.Ed.2d 988 (1981); Brandon v. Texas, 453 U.S. 902, 101 S.Ct. 3134, 69 L.Ed.2d 988 (1981). This appears to be the only non-capital case remanded to this court for further consideration in light of Estelle v. Smith, supra, where the court granted certiorari "to consider whether the prosecution's use of psychiatric testimony at the sentencing phase of respondent's capital murder trial to establish his future dangerousness violated his constitutional rights." 101 S.Ct. at p. 1869.

The Supreme Court in Estelle v. Smith, supra, speaking through its Chief Justice, held that where, prior to the in-custody psychiatric examination ordered by the court to determine the defendant's competency to stand trial, the defendant had not been warned that he had the right to remain silent and that any statement made could be used against him at the sentencing proceeding, etc., admission at the penalty phase of a capital felony trial of psychiatrist's damaging testimony on the crucial issue of future dangerousness violated the Fifth Amendment privilege against compelled self-incrimination because of a lack of appraisal of rights and a knowing waiver thereof, the death penalty imposed could not stand.

The court further held that the Sixth Amendment's right to counsel was violated where defense counsel was not notified in advance that the psychiatric examination would encompass the issue of future dangerousness and there was no affirmative waiver of the right to counsel.

Both the Fifth and Sixth Amendments are applicable to the states by virture of the Fourteenth Amendment. See Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).

In the Smith case the district judge, on his own motion, appointed Dr. James Grigson to examine the defendant Smith on the issue of his competency to stand trial. See Article 46.02, V.A.C.C.P. Dr. Grigson examined Smith without giving any warnings regarding his Fifth Amendment privilege against self-incrimination and did not notify the defense counsel that the psychiatric examination would encompass the issue of the defendant's future dangerousness, nor was the defendant accorded the assistance of counsel in determining whether to submit to such examination, etc.

After the examination, Dr. Grigson reported to the court that Smith was competent to stand trial. The case went to trial with no question being raised as to Smith's competency to stand trial or as to the defensive issue of insanity. After Smith was convicted at the guilt stage of the bifurcated trial for capital murder, Dr. Grigson was called by the State at the penalty stage of the trial to testify that, based upon his examination, he considered Smith a severe sociopath who would commit violent acts in the future "if given the opportunity to do so." The jury subsequently returned affirmative answers to the special issues submitted under Article 37.071(b), V.A.C.C.P., and the trial court assessed the death penalty in accordance with the law. The conviction was affirmed by this court in Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976).

Having exhausted his state remedies, Smith sought federal habeas corpus relief and prevailed in the United States District Court. Smith v. Estelle, 445 F.Supp. 647 (N.D.Tex.1977). The Fifth Circuit Court of Appeals affirmed though modifying the decision below. Smith v. Estelle, 602 F.2d 694 (5th Cir.1979). Subsequently the United States Supreme Court affirmed the Fifth Circuit opinion as earlier noted.

In affirming the lower court the Supreme Court in Smith noted that Smith's future dangerousness was a critical issue at the penalty stage of the capital murder trial, and one upon which the State had the burden of proof beyond a reasonable doubt [see Article 37.071(b) and (c), V.A.C.C.P.]; that the State, to meet its burden, used Smith's own statements unwittingly made without an awareness that he was assisting the State's efforts to obtain the death penalty.

In Smith the Supreme Court in concluding that the Fifth Amendment privilege was implicated wrote:

"In Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966), the Court acknowledged that 'the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.' Miranda held that 'the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.' Id., at 444, 86 S.Ct., at 1612. Thus, absent other fully effective procedures, a person in custody must receive certain warnings before any official interrogation, including that he has a 'right to remain silent' and that 'anything said can and will be used against the individual in court.' Id., at 467-469, 86 S.Ct., at 1624-1625. The purpose of these admonitions is to combat what the Court saw as 'inherently compelling pressures' at work on the person and to provide him with an awareness of the Fifth Amendment privilege and the consequences of foregoing it, which is the prerequisite for 'an intelligent decision as to its exercise.' Ibid.

"The considerations calling for the accused to be warned prior to custodial interrogation apply with no less force to the pretrial psychiatric examination at issue here. Respondent was in custody at the Dallas County Jail when the examination was ordered and when it was conducted. That respondent was questioned by a psychiatrist designated by the trial court to conduct a neutral competency examination, rather than by a police officer, government information, or prosecuting attorney, is immaterial. When Dr. Grigson went beyond simply reporting to the court on the issue of competence and testified for the prosecution at the penalty phase on the crucial issue of respondent's future dangerousness, his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a post-arrest custodial setting. During the psychiatric evaluation, respondent assuredly was 'faced with a phase of the adversary system' and was 'not in the presence of [a] person[ ] acting solely in his interest.' Id., at 469, 86 S.Ct., at 1625. Yet he was given no indication that the compulsory examination would be used to gather evidence necessary to decide whether, if convicted, he should be sentenced to death. He was not informed that, accordingly, he had a constitutional right not to answer the questions put to him.

"The Fifth Amendment privilege is 'as broad as the mischief against which it seeks to guard,' Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110 (1892), and the privilege is fulfilled only when a criminal defendant is guaranteed the right 'to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.' 11 Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493-1494, 12 L.Ed.2d 653 (1964). We agree with the Court of Appeals that respondent's Fifth Amendment rights were violated by the admission of Dr. Grigson's testimony at the penalty phase.12

"A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding. Because respondent did not voluntarily consent to the pretrial psychiatric examination after being informed of his right to remain silent and the possible use of his statements, the State could not rely on what he said to Dr. Grigson...