White v. Estelle

• Decision Date: 28 November 1983
• Docket Number: No. 83-2169,83-2169
• Citation: 720 F.2d 415
• Parties: Larry Wayne WHITE, Petitioner-Appellee, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 415

720 F.2d 415

Larry Wayne WHITE, Petitioner-Appellee, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellant.

No. 83-2169.

United States Court of Appeals, Fifth Circuit.

Nov. 28, 1983.

Calvin A. Hartmann, Winston Earle Cochran, Jr., Asst. Dist. Attys., Houston, Tex., for respondent-appellant.

Edmund Larry Cantu, William B. Allison, Houston, Tex., for petitioner-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, THORNBERRY and TATE, Circuit Judges.

TATE, Circuit Judge:

The state of Texas appeals the district court's judgment, 554 F.Supp. 851, that granted, after an evidentiary hearing, the petition of Larry Wayne White, a Texas inmate, for a writ of habeas corpus. 28 U.S.C. Sec. 2254. Finding that under Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), White's fifth, sixth, and fourteenth amendment rights were violated by the introduction of the testimony of psychiatric witnesses at the penalty hearing, the district court vacated White's 1979 death sentence. On appeal, the state contends that (1) the district court erred in applying Estelle v. Smith, supra (1981), retroactively to White's 1979 case, (2) that the district court erred in finding that Estelle v. Smith, supra, applied to the psychiatric testimony presented at the sentencing phase of White's case, (3) that, as to some of the testimony of one of the mental examiners, the federal court was barred by the Texas contemporaneous objection rule from considering White's claim, and (4) that any error in admitting the psychiatric testimony was harmless beyond a reasonable doubt. Finding no merit to the state's contentions, we affirm the district court's judgment granting habeas relief and vacating White's death sentence.

White was convicted of capital murder in June 1979. Following a capital conviction, a sentencing hearing is held at which three issues are submitted to the jury, mandating upon an affirmative jury finding the imposition of a capital sentence. One of these issues concerns the accused's propensities for future violence. The Estelle v. Smith issue in White's case results from the introduction into evidence at this penalty hearing of the testimony of two court-ordered mental examiners and their expressed professional opinion that there was a probability that White would commit future acts of violence. ¹

At the state trial, White had not raised the issue of his mental competency to stand trial. However, in April 1979 the state trial court granted the state's motion for psychiatric testimony and ordered that members of the Harris County psychiatric unit "conduct a psychiatric examination" of White. This was the general form of an order used by that state court to determine whether or not the defendant is competent to stand trial. R. II, pp. 44-45. The defendant White was not advised of his right to remain silent nor forewarned that any disclosure made during the mental examinations would be used against him as evidence, if convicted, in a penalty hearing that might result in a capital sentence. Nor was defense counsel apprised in advance of the scope of the psychiatric hearing as comprehending the issue of White's propensity for future violence for purposes of use in the penalty hearing.

Under these circumstances, the district court held that under Estelle v. Smith, supra, White's fifth, sixth, and fourteenth amendment rights were violated by use at the penalty hearing of the court-ordered mental examiners' testimony that the jury might reasonably believe was founded upon information obtained by these mental examiners as a result of the court-ordered psychiatric examinations of White.

The state first argues that the ruling in the Supreme Court's 1981 decision of Estelle v. White should not be retroactively applied to this 1979 penalty hearing. We have already rejected this contention. Battie v. Estelle, 655 F.2d 692 (5th Cir.1981). Under the precedent theory of this court, one panel may not overrule an earlier decision of another panel of this court squarely on point and in the absence of intervening and overriding Supreme Court decisions.

The state next argues that Estelle v. White was not offended because the questions eliciting the expert witnesses' professional opinion on White's propensity for future violence were couched in terms of "hypothetical" questions, although thinly veiled and patterning exactly White's prior criminal activity. The questions had been preceded by the testimony of each of the witnesses that they had examined White and had concluded that he possessed an anti-social personality. The district court found that, in the context of the entire interrogation, the answers to the "hypotheticals" (in one of which,...