Thompson v. State

Citation621 S.W.2d 624
Decision Date23 September 1981
Docket NumberNo. 62921,62921
PartiesJohn Russell THOMPSON, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for capital murder. Based on the jury's affirmative answers to the special issues of Article 37.071(b), V.A.C.C.P., the trial court assessed punishment at death.

Appellant raises 16 grounds of error. We shall briefly describe the facts shown at the trial. On the evening of May 21, 1977, Mary Kneupper was counting the day's receipts at the Store & Lok storage facility on Interstate Highway 35 and Loop 410 in San Antonio. She operated that business with her husband. Appellant, carrying a .45 caliber pistol, entered her office for the purpose of robbing her, but when she tried to flee the building, appellant vaulted over the counter and shot her once in the head from close range, causing her death. He fled to the car in which his three confederates were waiting, and they left the scene.

In his fourteenth ground of error, appellant contends that Dr. James Grigson, a Dallas psychiatrist, was improperly allowed to testify before the jury at the penalty stage of the trial, over objection, concerning his examination of appellant and his conclusion that appellant would likely commit future criminal acts of violence constituting a continuing threat to society.

Outside the presence of the jury, it was established that in October of 1977, the District Attorney's Office had presented a motion to a district judge, not the judge in whose court the instant case was pending, requesting that Dr. Grigson be appointed to examine appellant to determine the likelihood that appellant would commit future acts of violence. 1 The order was approved but apparently neither the motion nor the order was ever filed in the papers of the cause, nor was a copy ever served on defense counsel until the time of trial in June, 1978. Also, apparently the only written report made by Dr. Grigson was a letter dated November 4, 1977, to the trial judge stating his findings, which letter made its way to the court's file just shortly before appellant's trial. Again, no copy of the letter was ever delivered to appellant's counsel, and apparently their first knowledge of the motion, order and examination came with their discovering the original letter in the court's file.

Prior to Dr. Grigson's testifying, counsel objected that appellant had been denied his Sixth Amendment right to consult with counsel prior to submitting to the examination, that his Fifth Amendment privilege against self-incrimination had been violated, that his state and federal rights to due process had been violated, and that because of the surprise nature of the testimony, his ability to prepare and present rebuttal testimony and to conduct effective cross-examination had been substantially impaired. All of these objections were overruled.

Dr. Grigson subsequently testified that he had met with appellant on two occasions. He found no indications of remorse or guilt feelings, and stated that appellant had no mental disease or defect but did have an antisocial personality. He considered appellant to be at the extreme end of the scale of antisocial or sociopathic personality condition. He concluded that appellant would constitute a continuing threat "to whatever society he happens to be in in the future," and that he was extremely dangerous.

Appellant acknowledges that this court has rejected similar contentions in cases such as Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976); Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976), and Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976). He nevertheless urges that we reconsider our holdings in these and other similar cases, and rule in his favor. For its part, the State relies on the holdings in Livingston, supra, and other like cases, that such testimony is admissible notwithstanding the constitutional arguments presented by appellant. Furthermore, the State points to our express refusal in Muniz v. State, 573 S.W.2d 792 (Tex.Cr.App.1978), to follow the federal district court ruling in Smith v. Estelle, 445 F.Supp. 647 (N.D.Texas 1977), holding to the contrary as a matter of federal constitutional law.

We are constrained to hold, however, that the United States Supreme Court has foreclosed the issue by its opinion in Estelle v. Smith, --- U.S. ----, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). In that case, a Dallas trial judge on his own motion appointed the same Dr. Grigson to examine the defendant on the issue of competency to stand trial. See Article 46.02, V.A.C.C.P. Dr. Grigson examined the defendant and reported to the court that he was competent to stand trial. The case went to trial with no issue having been raised as to the defendant's competency to stand trial or sanity at the time of the offense. After the defendant was convicted of capital murder, Dr. Grigson was called to testify at the penalty stage that, based on his examination, he considered the defendant 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 to them, see Article 37.071(b), V.A.C.C.P., and the trial court assessed the death penalty. This court affirmed in Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976), as admitted in the brief of appellant in the instant case.

Having exhausted his state remedies, Smith filed suit for federal habeas corpus relief and prevailed on contentions identical to those raised at trial by appellant in this cause. Smith v. Estelle, 445 F.Supp. 647 (N.D.Texas 1977). The Court of Appeals affirmed. Smith v. Estelle, 602 F.2d 694 (5th Cir. 1979). In affirming the lower courts, the Supreme Court held that Smith's death sentence could not stand, given that he had received no warnings regarding his Fifth Amendment privilege against self-incrimination, nor had he been afforded his Sixth Amendment right to counsel, prior to submitting to the examination. Under these circumstances, it was held that Dr. Grigson's testimony concerning his examination, as well as his conclusions regarding Smith's "future dangerousness" derived from the "unwarned" examination, were improperly admitted into evidence.

Here, the contentions raised at trial are identical to those presented in Smith, supra. Although we have long held that testimony such as that given by Dr. Grigson is relevant to the jury's consideration of the special issues at the penalty stage, and admissible even over constitutional objection, see, e. g., Smith, supra; Livingston, supra; Moore, supra; Wilder v. State, 583 S.W.2d 349 (Tex.Cr.App.1979), vacated and remanded, --- U.S. ----, 101 S.Ct. 3133, 69 L.Ed.2d 987 (1981); Garcia v. State, 581 S.W.2d 168 (Tex.Cr.App.1979), vacated and remanded, --- U.S. ----, 101 S.Ct. 3133, 69 L.Ed.2d 988 (1981); Shippy v. State, 556 S.W.2d 246 (Tex.Cr.App.1977); and Von Byrd, 569 S.W.2d 883 (Tex.Cr.App.1978), the Supreme Court, in its role as ultimate expositor of the United States Constitution, has spoken otherwise, at least as to the constitutional issues. 2 We have no choice, therefore but to sustain appellant's fourteenth ground of error and reverse.

This does not complete our disposition of the case, however. In his third, fourth, and fifth grounds of error, appellant attacks various aspects of the sufficiency of the evidence. Since appellant would be entitled to a judgment of acquittal rather than a new trial should any of these grounds prove meritorious, see Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), we must review these grounds. Swabado v. State, 597 S.W.2d 361 (Tex.Cr.App.1980); Rains v. State, 604 S.W.2d 118 (Tex.Cr.App.1980).

The great majority of the testimony linking appellant to the robbery-murder of Mrs. Kneupper came from Esther Cervantes and Christie Sparks, whom the trial court was to later characterize in his charge to the jury as accomplice witnesses as a matter of law. Cervantes testified that she had been appellant's girlfriend at the time of the killing in question, and had been with him that day. Appellant had driven his automobile, with Cervantes, Sparks and Fernando Guerrero as passengers, to the Kneuppers' Store & Lok facility. She and the others stayed in the car while appellant went in with a gun. She heard a shot, then appellant came out, got in the car, and drove away at a high rate of speed. On cross-examination, Cervantes related that appellant had told her at the time that the shooting was accidental, and told her that he wished that it hadn't happened.

Christie Sparks testified that she was the girlfriend of Fernando Guerrero at the time of the killing. On the morning of the killing, she was with appellant, Guerrero, and one Jim Rackowitz, and listened while the three men planned to commit a robbery at a savings and loan office at the North Star Mall. Appellant and Guerrero made several telephone calls seeking a gun, but were unsuccessful. They then asked her for a gun, knowing that her stepfather, Major Albert Jones, Jr., had a military .45 caliber pistol in his bedroom closet. They drove to Jones' house and Sparks went in and got the pistol and a magazine or "clip" filled with seven rounds of ammunition. Then they drove somewhere and parked, and the two men operated the pistol, loading and unloading it. They also discussed their robbery plans, and decided not to include Rackowitz in the robbery.

The three then drove to the savings and loan location at North Star Mall, but found it closed. They...

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