Saldano v. State
| Decision Date | 06 June 2007 |
| Docket Number | No. AP-72556.,AP-72556. |
| Citation | 232 S.W.3d 77 |
| Parties | Victor Hugo SALDANO, Appellant, v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
John Tatum, Richardson, for Appellant.
Katharine K. Decker, Asst. Crim. D.A., McKinney, Matthew Paul, State's Attorney, Austin, for State.
In 1996, appellant was convicted of capital murder and sentenced to death. The conviction was upheld, but the death sentence was overturned in federal habeas corpus proceedings based on a procedurally defaulted claim of prosecutorial misconduct at appellant's 1996 trial.1 In 2004, appellant was again sentenced to death at another punishment hearing in state court. Appellant raises 66 points of error on direct appeal to this Court. Finding none of these points to present reversible error, we affirm.
The record reflects that, since his 1996 trial, appellant has resided on death row, where he has committed numerous acts of misconduct that resulted in him being placed in the most restrictive and isolated level of death row.2 The defense claimed that it intended to explain this misconduct with testimony from a psychiatrist (Peccora), who treated appellant on death row "on well over 100 occasions" from "late 1997 or early 1998" until "early 2001." It appears that Peccora would have testified that the conditions on death row caused appellant to suffer psychological deterioration and to misbehave. The State claimed, and the trial court agreed, that the defense could not present Peccora's testimony without first having appellant examined by a state psychiatric expert pursuant to this Court's decision in Lagrone v. State.3 Appellant would not submit to a Lagrone examination, and Peccora's testimony was not presented.
We understand appellant to have three basic, separate complaints on appeal regarding Lagrone. First, appellant should not have been required to submit to a Lagrone examination. Second, if appellant was required to submit to a Lagrone examination, this examination should have been limited to rebuttal of Peccora's testimony on appellant's mental decline. And, third, if appellant was required to submit to a Lagrone examination, the State should have been precluded from using any evidence derived from this examination on the future-dangerousness special issue. We find appellant's actual claims at trial to have been less clear.
Points of error one through three and five relate to the trial court conditioning the admissibility of Peccora's testimony on appellant submitting to a Lagrone examination. Specifically, appellant claims that the trial court constitutionally erred by not guaranteeing that any evidence the State obtained during this Lagrone examination would be limited to rebutting Peccora's testimony concerning appellant's mental decline on death row and by further failing to guarantee such evidence not be used by the State on the future-dangerousness special issue. In point of error one, appellant claims that this led the trial court "to incorrectly bar [Peccora's] expert testimony and deny the defendant's motion to dismiss the death penalty proceedings" before the punishment hearing began. In point of error two, appellant claims that this also "unconstitutionally permit[ted] the State to introduce evidence [at the punishment hearing] of misconduct by the defendant while on death row." In point of error three, appellant claims that this constitutional error also "effectively" prevented him from presenting constitutionally relevant mitigating evidence (in the form of Peccora's testimony concerning appellant's mental decline on death row) at the punishment hearing.4 And, in point of error five, appellant claims that the trial court should have granted him a new trial based on these claims.
The record reflects that the Lagrone issue first arose rather late in the proceedings during a November 5, 2004, hearing on a written motion that appellant had filed on October 21, 2004, in the middle of individual voir dire.5 The second part of that motion requested a ruling from the trial court that the State was constitutionally prohibited from seeking another death sentence and "therefore that [appellant] be sentenced to life imprisonment." The third part of the motion alternatively requested an in limine ruling from the trial court "to exclude all evidence of [appellant's death-row misconduct] subsequent to his first trial in July 1996."6
Appellant claimed at the November 5, 2004, hearing on this motion that the State should not be permitted to seek another death sentence or, alternatively, not be permitted to use any evidence of appellant's death-row misconduct after his 1996 trial because of the procedurally defaulted claim of prosecutorial misconduct at appellant's 1996 trial. See Footnote 1.7 Appellant evidently claimed that he would not have misbehaved on death row but for this "misconduct" by the State. To support these claims, appellant stated that he intended to introduce Peccora's testimony at the hearing to show appellant's mental decline on death row since his 1996 trial.8
[THE DEFENSE]: Sure. And the first part of the motion won't be the focus today. We're looking just, really, at the second part and the third part.
And regarding those parts, there are just two factual issues that we need to put evidence on.
The first factual issue is whether [appellant] has suffered a decline in his cognitive abilities and emotional stability as a result of his isolation on death row; and the second issue is whether [appellant] would have committed aggressive acts while incarcerated were it not for the isolation on death row.
And if the Court finds that [appellant] has suffered a decline in his cognitive abilities and emotional stability — and, your Honor, it doesn't require a finding on our part that he is psychotic, we're not arguing he's not competent to stand trial; we're only arguing a significant decline in cognitive ability and emotional stability.
If that's the case, our argument is he may no longer be tried. The State committed [the procedurally defaulted claim of prosecutorial misconduct at appellant's 1996 trial] by putting him on death row, they caused him to be diminished as a result of many years in isolation there, and they can't enjoy the fruits of that at the new sentencing proceeding today.
And, in fact, he can't even be evaluated fairly as a future danger because he's not just the same person today, and the statute requires an evaluation of future dangerousness as of the time of trial. Second, on the issue of whether [appellant] would have committed aggressive acts while incarcerated if not for the isolation that he was subjected to, the question is whether the State can present evidence of his misconduct on death row on the issue of future dangerousness.
And our position is that the State committed the primary illegality here [with the procedurally defaulted claim of prosecutorial misconduct at appellant's 1996 trial].
If the State can show by a preponderance of the evidence that the defendant's misconduct on death row would have occurred anyway, then we have nothing to complain about.
If you think of this in terms of an illegal search and seizure, and the fruits of an illegal search and seizure, clearly the illegality occurred. That means that the State can certainly try to overcome that illegality; show that, for instance, the evidence would have been obtained anyway; but they have the burden of showing that this misconduct would have occurred in any case.
We maintain that it's very clear from the testimony we'll present that the misconduct occurred precisely because of the isolation on death row that the State illegally placed him in.
The State claimed that appellant should not be permitted to present Peccora's testimony without the State having an opportunity to have appellant examined by a state psychiatric expert, and the trial court agreed.
[THE COURT]: Let me get something up front here.
I have had a chance to read, during some of that testimony, that Lagrone case, and I believe the State has a right to have [appellant] examined if the State's — if the defense is going to offer the evidence along the lines set out in [Peccora's] affidavit, which I've now reread.
The defense would not agree to a Lagrone examination "for the purposes of this pretrial motion" because of the risk that appellant's "examination to a psychiatrist of the State could actually be used against him at trial."
[DEFENSE LAWYER # 1]: Well, let me — let me make this even more clear.
The reason that we're putting that into evidence at this point is, we are not going to allow [appellant] to be looked at by a psychiatrist.
I'd like to point out that we're being placed in a situation risking that [appellant's] testimony — [appellant's] examination to a psychiatrist of the State could actually be used against him at trial. Faced with that possibility, we can't have the — our client examined for the purposes of this pretrial motion. It's just a risk that we can't run.
The record, therefore, reflects that appellant took the position at this November 5, 2004, hearing that any evidence obtained by the State during a Lagrone examination might be used by the State on any issue at the punishment hearing (including future dangerousness). At this point, appellant had not alerted the trial court to any claim that the trial court should guarantee that a Lagrone examination be limited to...
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