Woods v. Johnson, 91-2928

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 75 F.3d 1017
• Docket Number: No. 91-2928,91-2928
• Parties: Billy Joe WOODS, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Decision Date: 07 February 1996

Page 1017

75 F.3d 1017

Billy Joe WOODS, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 91-2928.

United States Court of Appeals, Fifth Circuit.

Feb. 7, 1996.

M. Susan Hardie, James R. O'Donnell, Marion E. McDaniel, Jr., Rueben C. Casarez, Butler & Binion, Houston, TX, for appellant.

William C. Zapalac, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, TX, for appellee.

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

Before KING, GARWOOD and DUHE, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Billy Joe Woods (Woods) appeals the district court's denial of his 28 U.S.C. § 2254 habeas petition challenging his Texas capital murder conviction and sentence to death.

Woods' primary contention is that the punishment stage future dangerousness testimony of prosecution witness Dr. Garcia violated the rule of Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), and Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988), and his Fifth, Sixth, and Fourteenth Amendment rights, because Dr. Garcia had examined Woods for competency prior to trial, but Woods' counsel was not notified of the examination and Woods was not given appropriate Miranda-type warnings. ¹ The district court found that Dr. Garcia's challenged testimony was harmless beyond a reasonable doubt, applying the Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), standard. Although our analysis in some respects slightly differs from that of the district court, and we apply the more lenient Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), harmless error standard rather than the stricter Chapman standard, we ultimately agree with the district court that the error in question was harmless under Brecht. The district court likewise rejected Woods' other claims, as do we respecting those he has complained of on appeal. We hence affirm.

Facts and Proceedings Below

By indictment filed October 21, 1975, in state court in Harris County, Woods was charged with capital murder committed October 10, 1975, in Houston, Texas, by intentionally killing Mable Ehatt (Ehatt) while in the course of robbing and attempting to rob her. Attorney Thibodeaux had been appointed to represent Woods on October 16, 1975; on October 23, attorney Heacock was also appointed to represent Woods. ² On October 22, 1975, the state moved for, and the trial court ordered, Woods to undergo a psychiatric examination, with report to be filed in the papers of the case by November 14, 1975. Although the motion and order were filed in the papers of the case, they were not served on defense counsel. The court-ordered examinations did not take place until mid-December 1975. On December 15, 1975, Woods was examined by Dr. Nottingham, a psychiatrist with the Harris County Psychiatric Hospital, and on December 16, 1975, by Dr. Bloom, a psychologist, and by Dr. Garcia, a psychiatrist, each also with the Harris County Psychiatric Hospital. All three found Woods both sane and competent to stand trial. The reports of Drs. Nottingham and Bloom were not filed in the papers of the case (or put in evidence at trial), and neither of them testified at trial. Dr. Garcia's report was filed in the papers of the case on January 15, 1976, but was not put in evidence at trial. ³ Defense counsel were unaware that the examinations had been ordered or were going to be conducted, and hence were not present at and did not advise Woods respecting any of them.

Meanwhile, on January 12, 1976, defense counsel moved to have Woods examined for competency by psychiatrist Dr. Byrd, who had a reputation of being pro-defense. On January 22, 1976, the trial court granted the motion and ordered that the examination by Dr. Byrd take place January 25. Dr. Byrd examined Woods prior to trial--though just when is not clear--and the results of his examination were so adverse to the defense that defense counsel asked him to refrain from writing or filing a report with the court. There is no indication that Dr. Byrd ever wrote a report, and he did not testify. He did advise defense counsel that he found Woods competent to stand trial and sane at the time of the offense, he characterized Woods as anti-social and mean, and informed defense counsel that counsel would not want him, Dr. Byrd, to testify.

Trial on the merits did not commence until July 1976. On July 6, just before the commencement of voir dire, defense counsel filed a motion requesting that the court instruct the district attorney in various respects including, in the motion's paragraph III, "not [to] allude to or introduce results of any scientific tests made by the State of Texas, specifically, psychiatric tests, fingernail scrapings, pubic hairs or blood samples taken from the defendant" (emphasis added), on the ground (stated in the motion's paragraph IV) that if allowed those matters would violate defendant's Fifth Amendment rights and "defendant was without counsel at the time of the scientific tests." The court's notation at the foot of the motion appears to indicate that it was granted "as to paragraph III." However, the transcript of the hearing on this and other defense motions indicates that the motion (which counsel orally described at the hearing as relating to "a blood sample, hair, maybe fingernail scrapings") as there stated was overruled, though apparently without prejudice to being presented later. There is no indication that the motion was ever presented later. ⁴

At the guilt/innocence stage of trial, no issue was raised and no evidence was presented concerning Woods' sanity or competency. The state's unrebutted evidence at the guilt/innocence stage is generally summarized in the Texas Court of Criminal Appeals' opinion on Woods' direct appeal:

"... in the middle of the night appellant climbed up some poles and lattice work to the balcony of the second story apartment of a 63 year old woman [the victim, Mable Ehatt] who was afflicted with cancer and could move about only with the aid of a walker. Appellant forced the door open from the balcony into the apartment and once inside robbed the occupant and beat and strangled her to death. He also apparently attempted to perform some sort of sexual act with her because she was found to be nude from the waist down, several hairs from her head were found jammed in the zipper of appellant's fly which was open when he was arrested at the scene, and a considerable amount of feces and blood from the deceased were found on the front of appellant's trousers, shorts, shirt and shoes." Woods v. State, 569 S.W.2d 901, 902 (Tex.Crim.App.1978), cert. denied, 453 U.S. 913, 101 S.Ct. 3145, 69 L.Ed.2d 995 (1981).

According to the police officers' testimony, when they entered the apartment (where the deceased had lived alone) it was "in complete disarray," the victim's walker was turned over on the floor, her purse had been emptied on the floor, and large quantities of blood and human defecation were observed on the floor of the living room and dining room. The deceased's still warm body was lying in the kitchen "in a good bit of blood and human defecation," with her head in the entryway between the dining room and kitchen. She was naked from the waist down. There was blood "from her mouth." Her face and eyes were swollen and discolored, "severe bruises" were visible on her head and back, and there was "an extreme amount of blood in the apartment, on her and around her." Bits of body tissue were observed in the blood on the floor. The victim's sister testified that when her body was seen later one of Ehatt's eyes "looked like half of a tennis ball." The medical examiner testified that "the cause of death was a fractured hyoid bone and fractured skull, blunt trauma to neck and head and manual strangulation." ⁵ The hyoid bone was fractured on both sides, which the examiner testified "indicates constriction type of trauma; that's squeezing of the neck and resistance on the part of the victim." ⁶ The deceased's fractured skull could have been caused by someone of Woods' size striking her head with his fists (or kicking her head with his feet or hitting it with an object such as a baseball bat).

The defendant was found by the police officers alone (except for the deceased) in the apartment; the zipper on his fly was open, and hairs from the deceased's head were caught in it; his undershorts had blood and hair on them; there was blood and defecation, still fresh, on his shoes. The officers at that time observed bruises and abrasions on the defendant's knuckles, abrasions on the palm of his hand, numerous scratches on his back below the shoulders, and a long scratch on the back of his right leg. The defendant had the deceased's bracelet on his left wrist and her hair brush and prescription medicine, and a woman's electric razor, in his pants pocket.

There was no defense evidence. ⁷ The jury found Woods guilty as charged.

Thereafter, just before the punishment phase of trial commenced, defense counsel, out of the presence of the jury, unsuccessfully objected to the anticipated calling of Dr. Garcia as a punishment stage witness for the state, on the ground that Dr. Garcia's examination of Woods was performed "without the consent or permission of the defense attorneys" and his testimony would constitute "an abridgement of the Fifth Amendment rights." ⁸

At the punishment stage, the prosecution first put in evidence that in April 1970 Woods was convicted, in Louisiana state court, on his plea of guilty, of attempted aggravated rape, committed December 21, 1969, in New Orleans, and was sentenced to fifteen years in the penitentiary. The state then called Dr. Garcia, who, after identifying himself as a psychiatrist, testified as follows:

"Q. Did you have an occasion to examine the defendant in this case, Billy Joe...