Wilkens v. State

• Decision Date: 10 June 1992
• Docket Number: No. 70136,70136
• Citation: 847 S.W.2d 547
• Parties: James Joseph WILKENS, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 547

847 S.W.2d 547

61 USLW 2046

James Joseph WILKENS, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 70136.

Court of Criminal Appeals of Texas,

En Banc.

June 10, 1992.

Rehearing Denied Nov. 4, 1992.

Gary W. Morgan and Hunter B. Brush, Tyler, for appellant.

Jack Skeen, Jr., Dist. Atty., Michael J. Sandlin, Asst. Dist. Atty., Tyler, and Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

OVERSTREET, Judge.

James Joseph Wilkens, Jr., appellant, was indicted for the offense of capital murder in the shooting deaths of Richard Wood and Larry McMillen, Jr. both having been committed during the same criminal transaction on or about December 27, 1986 in Smith County, Texas. Appellant was convicted and sentenced to death on or about February 18, 1988. This is appellant's direct appeal of this verdict wherein he raises twelve points of error.

Appellant does not raise sufficiency of the evidence, and so a detailed recitation of the facts is not necessary. Briefly, he is accused of going to the home of Richard Wood on December 27, 1986 with a .22 rifle and immediately opening fire on all present. Richard Wood was shot in the face and left dead in his doorway. Sandra Williams, a former girlfriend of appellant's, was shot several times in the front yard while attempting to run from appellant; however, she lived. Larry McMillen, Jr., a four year old child of Sandra Williams, was killed by multiple shots while sitting on the living room sofa. Appellant plead not guilty by reason of insanity. He was examined by two doctors for his mental competency to stand trial and was found competent for purposes of trial.

Appellant's points of error may be categorized into three groupings. Points of error two, three, four, and ten all complain of the testimony at the penalty phase by Drs. Tynus McNeel and Thomas Allen; particularly, on future dangerousness and the State's failure to notify defense in advance that their examinations would be used for future dangerousness, as well as Dr. McNeel's status as an expert.

Points of error five through eight all complain of the admitting of certain photographs of the two victims, all of which appellant alleges were highly prejudicial and inflammatory and had little or no probative value.

Points of error one and nine complain of error in the charge; and points eleven and twelve complain of improper bolstering and of the capital sentencing procedure as it relates to mitigating evidence.

Points two and three pertain to testimony at the penalty phase by Dr. Tynus McNeel and Dr. Thomas Allen about appellant's future dangerousness. Appellant argues that such testimony violated his Fifth Amendment privilege against compelled self-incrimination because neither doctor had informed him of his right to remain silent and that anything he said could be used against him. See Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). In point of error four, appellant contends his Sixth Amendment right to counsel was violated by the State's failure to first notify his counsel that the psychiatric and psychological examinations would encompass the issue of future dangerousness upon which McNeel and Allen testified.

Prior to trial appellant's counsel requested that the trial court appoint an expert to examine appellant concerning his competency to stand trial. His motion also stated that appellant suffered from mental diseases and defects in the recent past. In addition, counsel filed a notice of intent to raise the defense of insanity. The trial court appointed McNeel to examine appellant on the issues of competency to stand trial and insanity at the time of the offense. Later, the trial court granted counsel's request to appoint Allen to examine appellant on the issue of competency. Again the court's order included a provision ordering Allen to also examine appellant on the issue of sanity at the time of the offense.

Both McNeel and Allen testified for the State in rebuttal during the guilt/innocence phase of trial concerning appellant's sanity. At the punishment phase of trial McNeel and Allen testified for the State that, based upon their examinations of appellant, there was a probability he would commit future acts of violence. Appellant objected to this testimony on the basis that neither McNeel nor Allen had informed him of his right against self-incrimination and that anything he said could be used against him. Appellant did not object that this testimony violated his Sixth Amendment right to counsel. Therefore, appellant has not preserved his contention concerning a violation of his right to counsel. Spence v. State, 795 S.W.2d 743 (Tex.Cr.App.1990); Gardner v. State, 733 S.W.2d 195 (Tex.Cr.App.1987). See also Tompkins v. State, 774 S.W.2d 195 (Tex.Cr.App.1987); Pyles v. State, 755 S.W.2d 98 (Tex.Cr.App.1988); Granviel v. State, 723 S.W.2d 141 (Tex.Cr.App.1986). Point of error four is overruled.

Appellant's claim in points two and three that his Fifth Amendment rights were violated by McNeel's and Allen's testimony at the punishment phase of trial requires a determination of two issues: first, whether appellant waived his Fifth Amendment rights by his assertion of an insanity defense at guilt/innocence phase; and, second, if he did so waive his Fifth Amendment rights as to this psychiatric testimony at the guilt/innocence phase regarding insanity, whether that waiver extends to the punishment phase and the issue of future dangerousness under Article 37.071(b)(2), V.A.C.C.P.

The trial court ordered the examinations for competency and insanity at appellant's request. Appellant did not waive his Fifth Amendment privilege merely by requesting appointment of a court-appointed psychiatrist and psychologist and submitting to a competency and sanity examination. Hernandez v. State, 805 S.W.2d 409 (Tex.Cr.App.1990); Powell v. State, 742 S.W.2d 353 (Tex.Cr.App.1987), vacated and remanded 487 U.S. 1230, 108 S.Ct. 2891, 101 L.Ed.2d 926 (1988) aff'd 767 S.W.2d 759 (Tex.Cr.App.1989) revs'd 492 U.S. 680, 109 S.Ct. 3146, 106 L.Ed.2d 551 (1989); Battie v. Estelle, 655 F.2d 692 (5th Cir.1981).

In Smith the Supreme Court held that because the defendant was not informed that what he said during the competency examination could be used against him at the punishment phase of trial on the issue of future dangerousness, his Fifth Amendment rights were violated. The Court left open the issue of the admissibility of such compelled testimony in response to a defendant's assertion of the insanity defense or to a defendant's use of psychiatric evidence in his own behalf on the issue of future dangerousness.

In Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987), the Supreme Court addressed the issue left open in Smith concerning the State's use of psychiatric testimony for rebuttal purposes when the defendant has initiated the use of psychiatric evidence. In Buchanan defense counsel joined with the prosecutor in a motion for involuntary hospitalization of the defendant for treatment of mental illness. At trial the defendant attempted to establish the affirmative defense of "extreme emotional disturbance," relying on psychological reports and letters. In response the prosecutor introduced part of a report made by a doctor concerning his observations about the defendant's mental state when the defendant was involuntarily hospitalized. The defendant objected that this violated his Fifth and Sixth Amendment rights.

Relying on language in Smith, the Court stated:

[I]f a defendant requests such an evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested. The defendant would have no Fifth Amendment privilege against the introduction of this psychiatric testimony by the prosecution. [Citations omitted] Id., 483 U.S. at 422-423, 107 S.Ct. at 2917-2918, 97 L.Ed.2d at 355. The Court noted this report did not describe any statements made by the defendant dealing with the offenses for which he had been charged. The Court concluded that use of such a report for "this limited rebuttal purpose" was not a Fifth Amendment violation. Id., 483 U.S. at 424, 107 S.Ct. at 2918, 97 L.Ed.2d at 356.

The above quoted language in Buchanan controls appellant's argument that he had not waived his Fifth Amendment rights at the guilt/innocence phase by introducing evidence in support of his insanity defense. We hold, in accord with Buchanan, that it was not a violation of appellant's Fifth Amendment privilege for the State to rebut appellant's presentation of an insanity defense at the guilt/innocence stage with testimony from the experts who had examined appellant on that issue at his request.

Appellant also argues a more narrow basis for finding no waiver of his Fifth Amendment privilege at the guilt/innocence phase despite his presentation of an insanity defense. He relies upon a case from this Court, Powell v. State, 742 S.W.2d 353 (Tex.Cr.App.1987), vacated and remanded 487 U.S. 1230, 108 S.Ct. 2891, 101 L.Ed.2d 926 (1988), aff'd 767 S.W.2d 759 (Tex.Cr.App.1989), revs'd 492 U.S. 680, 109 S.Ct. 3146, 106 L.Ed.2d 551 (1989), to argue that he had not waived his Fifth Amendment rights concerning the expert testimony at the guilt/innocence phase and thus also not at the punishment phase.

Our original opinion in Powell addressed the same issue presented by appellant. That issue is whether a defendant's presentation of evidence in support of an insanity defense waives his Fifth and Sixth Amendment rights concerning psychiatric testimony at the guilt/innocence phase of trial and at the punishment phase.

In Powell the defendant's Fifth and Sixth Amendment rights were violated under Smith by allowing testimony of psychiatric and psychological examinations without informing him of his Miranda ¹ rights and without notifying counsel...