Werner v. State

• Decision Date: 09 April 1986
• Docket Number: No. 022-85,022-85
• Citation: 711 S.W.2d 639
• Parties: Peter Alan WERNER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 639

711 S.W.2d 639

Peter Alan WERNER, Appellant, v. The STATE of Texas, Appellee.

No. 022-85.

Court of Criminal Appeals of Texas,

En Banc.

April 9, 1986.

David H. Berg, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and William J. Delmore, III, and Norma Davenport, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

A jury found appellant guilty of murder and assessed punishment at 10 years' confinement in the Department of Corrections.

The evidence showed that appellant shot and killed Tarbell Griffin Travis, after Travis allegedly damaged an automobile owned by appellant's friend, Kenneth Netterville.

On appeal the appellant raised four grounds of error, the second of which contended the trial court erred in refusing to allow him to introduce certain evidence on the condition of his mind "at the time of the offense" by virtue of the testimony of two police officers and a psychiatrist. The Court of Appeals found the excluded evidence was not relevant to any issue and overruled ground of error number two. Likewise the Court of Appeals rejected the other grounds of error and affirmed the conviction. Werner v. State, 680 S.W.2d 858 (Tex.App.--Houston [1st Dist.] 1984). We granted appellant's petition to determine whether the Court of Appeals was correct in overruling the second ground of error relating to the Holocaust syndrome. ¹

The facts form the necessary backdrop for a discussion of appellant's contention. The 21-year-old appellant left work about 10:45 p.m. on April 1, 1982. He bought a six pack of beer and about 11 p.m. went to the Netterville residence on Stillbrooke in Houston to see Kenneth Netterville. Approximately 45 minutes later while he was on the porch with Kenneth's sister, Carole, appellant saw a car driven by the deceased, Tarbell Travis, speeding onto Stillbrooke from Greenwillow. The car swerved to miss a parked car and collided with Netterville's vehicle on the opposite side of the street. The car backed into Greenwillow and took off at a high rate of speed. Kenneth Netterville came out of the house and gave appellant a pistol stating "Let's go get him" and instructing appellant to go "that way."

Appellant found the vehicle on Spellman Street where the deceased Travis and his passenger, John Christensen, had gotten out to inspect the damage to the vehicle in which they were riding. Appellant parked his car parallel to the other vehicle and got out carrying a flashlight in one hand and the pistol in the other hand. Christensen testified appellant said, "What the hell do you think you're doing? You hit my friend's car. I ought to shoot you." Christensen recalled the deceased responded, "Well, then, why don't you?" At this time appellant shot the deceased in the chest from which wound he expired.

Appellant testified that he pursued the deceased's vehicle "to hold whoever hit my friend's car for the police." After he found the vehicle he stated he "yelled at him to get up against the car," and the deceased replied, "You're just going to have to shoot me, you son of a bitch." Appellant testified the deceased made a "shrugging" motion with his shoulders and took a step towards him. With the flashlight he saw the deceased's face and the deceased "looked crazy." He couldn't see the deceased's hands and didn't know whether the deceased was armed. Appellant stated he was in fear of his life, and to protect himself he shot the deceased in the chest.

Appellant did not know the deceased and apparently had not seen the deceased before the occasion in question. At no time during his testimony was he asked or did he state that he was a son or grandson of survivors of the Holocaust, or that stories about the Holocaust had any influence upon his state of mind at the time of the offense.

The excluded testimony was preserved for review by informal bills of exception. It appears from the record that an hour and a half after the officers arrived at the scene of the shooting ² two officers took the appellant in a patrol car to the police station. It was the conversation in the patrol car that the appellant sought to introduce before the jury.

Officer N.K. McErlane testified he drove the car on the occasion in question and heard a conversation with the appellant about the Holocaust, but that there was no interrogation of appellant. He did not consider it significant, did not include it in any offense report and did not relay the information to anyone connected with the prosecution of the case. McErlane stated the conversation had not been called to his attention until shortly before he testified. He remembered the appellant had stated appellant's father was a survivor of the Holocaust, had been "in some camp ... during the forties" and that the father still had memories of those events which bothered him (the father). McErlane didn't see any relationship between the Holocaust and the shooting. All he could recall of the conversation was that the father was involved in the Holocaust.

Officer Duane Hartman was also in the patrol car when appellant was transported to the police station. He testified that for 10 or 15 minutes appellant voluntarily talked about his family, that his father and grandparents were in the Holocaust, that his father had come from Poland and had been raised in a certain manner, and tried to raise him (appellant) in the same manner. He thought appellant had mentioned appellant's father had been in a Nazi concentration camp and had witnessed people going without argument to the gas chambers, and the father had told appellant about these things as he grew up. When asked if the appellant had related what his father had told him about the concentration camps, the record reflects:

"A. Basically what he related to me is his sorrow for his father having to see this situation after having seen what he had seen when he was at the Holocaust.

"Q. Basically, he expressed sadness for what his dad had gone through.

"A. Not what his dad had gone through, but what at that time he was putting his father through for the incident, the situation he was in.

"Q. Because of the shooting?

"A. The fact that he was ashamed for putting his father through that again."

Officer Hartman also related appellant stated he knew how Jews felt during the Holocaust as a result of his being handcuffed in the back of the patrol car and being "taken away."

When asked if appellant had said that in growing up he had decided because of his father's experiences to be able to defend himself if he felt threatened. Officer Hartman answered:

"Not exactly like that. We discussed guns and he was very knowledgeable on that. He reflected through that, that's how he planned to protect himself. * * * that he would be ready if the time ever arose." (Emphasis added.)

Hartman testified he gave no significance to the statements, did not mention the same in any offense report, and did not relate the information to the prosecutor until that very day of the trial. When asked why, Officer Hartman replied, "As a result of becoming aware that was what he was going to use a defense on the basis of the Holocaust.

Appellant also proffered the testimony of Dr. Rudolph Roden, a board-certified psychiatrist, who received a degree in Russian Literature from Charles University in Prague, Czechoslovakia in 1948, a medical degree from Queen's University in Kingston, Ontario in 1955, and a Ph.D. from the University of Montreal in 1965. It was stated Dr. Roden had come to this country three years before from Canada; was board-certified in psychiatry; that Dr. Roden's particular interest was research into the area of survivors and children of survivors of Nazi concentration camps; that the doctor himself was incarcerated in concentration camps from 1940 to 1945. It was also offered that Dr. Roden had lectured and written articles in the field of his specialty. He had conducted seminars in pre-Freudian and Freud, Freud's general psychological theory, male chauvinism, survivor syndrome, and survival.

It was proffered that Dr. Roden would testify that beginning in August, 1982, four months after the alleged offense, he began to see the appellant as a patient, and saw him some 18 or 19 times. Dr. Roden learned that the appellant's paternal grandmother was Jewish, his paternal grandfather was Protestant, and after the grandfather's death in 1941 or 1942 appellant's grandmother and his half-Jewish father and other members of the family were placed in concentration camps, that the father and grandmother survived, the other members of the family did not. Dr. Roden also learned the appellant grew up with stories of concentration camps told to him by his father and grandmother, who related seeing people beaten to death who did not fight back. Dr. Roden determined appellant showed "some" of the characteristics of an individual who has the syndrome associated with children of survivors of Nazi concentration camps.

It was also stated Dr. Roden would testify that the appellant told him of the events that occurred on the night in question. Dr. Roden related that appellant told him the moment he (appellant) pulled the trigger that he wasn't thinking about anything except protecting himself. Dr. Roden would testify, however, "that one does not need to be thinking of an event for another event in one's life to have an effect, a subconscious effect on him;" that the appellant disliked injustice, and one of the greatest injustices was the Holocaust, and that his knowledge thereof shaped his view of self-defense, that the act of the deceased in "running into a car and leaving the scene was an unjust act in the appellant's view, and he sought to right the wrong by detaining the deceased for the police. Dr. Roden would testify that appellant's background caused him to make the decision to protect himself...