Riles v. State

Decision Date26 March 1980
Docket NumberNo. 63727,63727
PartiesRaymond G. RILES, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

ODOM, Judge.

This is an appeal from a conviction for capital murder. The jury answered the questions submitted to it at the punishment stage under Art. 37.071, V.A.C.C.P., in the affirmative. Accordingly, the punishment is death.

Appellant raises eleven grounds of error, relating to jury selection, rulings on evidence, effectiveness of counsel, and the jury charge. The sufficiency of the evidence is not challenged. The facts of the crime are stated in the opinion reversing an earlier conviction for this offense. Riles v. State, (Tex.Cr.App.) 557 S.W.2d 95. The defense presented was insanity at the time of the offense. V.T.C.A., Penal Code Sec. 8.01.

We will first consider the two grounds of error relating to the jury selection process. Appellant contends reversible error was committed because four jurors were not qualified under V.T.C.A., Penal Code Sec. 12.31, 1 and because the court neglected to inquire under Art. 35.17, V.A.C.C.P., 2 whether the prospective jurors had formed any opinion about the case. Appellant does not suggest that his own examination of the prospective jurors was in any way restricted. No objection was raised on the grounds now urged on appeal. The record reflects that each juror selected to serve in this case was accepted by appellant without objection. Appellant cannot complain on appeal on the basis of a ground not raised in the trial court. See Burks v. State, (Tex.Cr.App.) 583 S.W.2d 389, 396.

Appellant in two grounds of error complains of the exclusion of testimony. One instance concerns adverse rulings at the pre-trial competency hearing and the other refers to exclusion at trial of a psychiatrist's testimony about statements by appellant upon which he relied in making his diagnosis. In neither instance was the record developed to show what testimony would have been given. Thus, nothing is presented for review. Art. 40.09(6)(d)(1), V.A.C.C.P.; Davison v. State, (Tex.Cr.App.) 510 S.W.2d 316. Furthermore, the basis for admissibility of the psychiatrist's testimony urged on appeal (to show the basis for his opinion) was not urged at trial, so nothing is presented for review. Milligan v. State, (Tex.Cr.App.) 554 S.W.2d 192.

Four grounds of error raise issues about the admissibility of evidence presented by the State.

In one ground of error appellant complains about the testimony of Dr. Garcia regarding statements made by appellant during his examination by the doctor. Appellant argues this violated the exclusionary rule of Art. 46.02, Sec. 3(g), V.A.C.C.P. 3 In his brief, however, appellant admits that Dr. Garcia was called to testify on the issue of appellant's sanity at the time of the offense. In DeRusse v. State, (Tex.Cr.App.) 579 S.W.2d 224, 230, the Court held:

"We can perceive of no reason to apply Art. 46.02, Sec. 3(g), so as to forbid the trial use, relative to the sanity defense, of the defendant's statements to the psychiatrist during a combined competence/sanity examination pursuant to Art. 46.03, Sec. 3(g), supra. Psychiatric testimony with regard to the defendant's sanity at the time of the offense would hardly be possible if statements by the defendant during his examination were inadmissible, and the jury would be deprived of valuable evidence relative to the insanity defense. Moreover, to allow the statements of the defendant during an Art. 46.03, Sec. 3(g), examination to be admitted in evidence at his trial causes no unique prejudice to the defendant; he is in precisely the same position as any other defendant who is examined with regard to the insanity defense."

In this record we have been unable to find an order appointing Dr. Garcia by name. The only order for a psychiatric examination that we have found that might have been the basis of Dr. Garcia's examination does not specify whether the purpose of the examination was to determine competency under Art. 46.02, supra, or insanity under Art. 46.03, supra. We therefore conclude the record does not show a violation of Art. 46.02, Sec. 3(g), supra. The ground of error is overruled.

In another ground of error it is argued that the State on cross-examination of Dr. Byrd revealed to the jury the fact that appellant had been previously tried, in violation of Art. 40.08, V.A.C.C.P. 4 The record reflects that during direct examination by appellant, the doctor read the same sentence from his report to which this ground of error is directed. Thus, appellant had previously introduced the same evidence. No error is shown. See, Yates v. State, (Tex.Cr.App.) 509 S.W.2d 600, 604.

In two grounds of error appellant complains of references to the fact that he had been on death row. In one instance, after appellant read parts of a deposition by Dr. Draksharon as evidence of appellant's disturbed psychological condition, the State was allowed to read the cross-examination portion of the deposition in which the doctor stated appellant was on death row at the time of the examination, and that the fact he was facing the death penalty could have been a significant factor accounting for his disturbed condition. Later, in jury argument, the State referred to this evidence in its explanation of the weight that should be given to the doctor's opinion on the issue of the insanity defense. We find the evidence and argument were both proper efforts to place the doctor's opinion in perspective with respect to the more recent events that he admitted would affect the condition observed by him, and the reliability of applying those observations to the issue of appellant's sanity at the time of the offense. Furthermore, no claim of surprise can be urged since the evidence was presented by deposition taken prior to trial. The grounds of error are overruled.

Next appellant asserts trial counsel was ineffective for failure to make proper objection to the matters raised in the three grounds of error just discussed. In view of our disposition of those issues on the...

To continue reading

Request your trial
87 cases
  • Bower v. State
    • United States
    • Texas Court of Criminal Appeals
    • January 25, 1989
    ...of capital murder if he intentionally commits murder in the course of committing or attempting to commit robbery. In Riles v. State, 595 S.W.2d 858 (Tex.Cr.App.1980), this Court construed the phrase "in the course of committing or attempting to commit" as used in Section 19.03(a)(2) as "con......
  • Alexander v. State
    • United States
    • Texas Court of Criminal Appeals
    • October 7, 1987
    ...an attempt to commit, during the commission, or in immediate flight after the attempt or commission of the offense." Riles v. State, 595 S.W.2d 858, 862 (Tex.Cr.App.1980); Autry v. State, 626 S.W.2d 758, 762 (Tex.Cr.App.1982), cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982)......
  • Drew v. State
    • United States
    • Texas Court of Criminal Appeals
    • September 30, 1987
    ...commission, or in immediate flight after the attempt or commission of the offense, i.e., in this case, of robbery." Riles v. State, 595 S.W.2d 858, 862 (Tex.Cr.App.1980); see also, Fierro v. State, 706 S.W.2d 310, 313 (Tex.Cr.App.1986); Anderson v. State, 701 S.W.2d 868 (Tex.Cr.App.1985); A......
  • Mann v. Scott
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 21, 1994
    ...Barnes v. State, 845 S.W.2d 364, 367 (Tex.App.1992); Fierro v. State, 706 S.W.2d 310, 313 (Tex.Crim.App.1986); Riles v. State, 595 S.W.2d 858, 862 (Tex.Crim.App.1980) (en banc); cf. TEXAS PENAL CODE ANN. Sec. 29.01(1) (West 1994) (providing an analogous definition to the phrase "in the cour......
  • Request a trial to view additional results
3 books & journal articles
  • Death and Texas: the Unevolved Model of Decency
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 90, 2021
    • Invalid date
    ...in a robbery between the assault and the theft); Ibanez v. State, 749 S.W.2d 804, 807 (Tex. Crim. App. 1986). 135. Riles v. State, 595 S.W.2d 858, 862 (Tex. Crim. App. 136. The following baker's dozen cases, from pre-Penal Code to modern era TCCA interpretations, show a steadfast interpreta......
  • Table of cases
    • United States
    • James Publishing Practical Law Books Texas Criminal Jury Charges. Volume 1-2 Volume 2
    • May 4, 2021
    ...832 S.W.2d 168 (Tex. App.—Waco 1992, pet. ref’d) 2:20 Richardson v. State 888 S.W.2d 822 (Tex. Crim. App. 1994) 8:480 Riles v. State 595 S.W.2d 858 (Tex. Crim. App. 1980) 6:260 Riley v. State 830 S.W.2d 584 (Tex. Crim. App. 1992) 3:1240 Riley v. State 965 S.W.2d 1 (Tex. App.—Houston [1st Di......
  • Offenses against person
    • United States
    • James Publishing Practical Law Books Texas Criminal Jury Charges. Volume 1-2 Volume 1
    • May 4, 2021
    ...Abbott v. State , 751 S.W.2d 305 (Tex.App.-San Antonio 1988, no pet.). §6:250 “In the Course of Committing Robbery” In Riles v. State , 595 S.W.2d 858 (Tex.Crim.App. 1980), the Court said that “in the course of committing robbery” is not defined in the Penal Code. Therefore, the phrase “in ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT