Allen v. State

Full title: GUY LEN ALLEN, Appellant v. THE STATE OF TEXAS

Court: Court of Criminal Appeals of Texas

Date published: Jun 28, 2006

No. AP-74,951 (Tex. Crim. App. Jun. 28, 2006)

Opinion

No. AP-74,951

Delivered June 28, 2006. DO NOT PUBLISH.

On Direct Appeal from Travis County.

KELLER, P.J., delivered the opinion of the Court in which MEYERS, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined. WOMACK, J., filed a concurring opinion in which MEYERS, JOHNSON, and COCHRAN, JJ., joined. JOHNSON, J., filed a concurring opinion in which PRICE, J., joined.

OPINION

KELLER, Presiding Judge.

Appellant and his girlfriend, Barbara Hill, lived together off and on from October of 2001 to April of 2002. They lived at Hill's home with her youngest daughter, nineteen-year-old Janette Johnson. On April 2, 2002, Hill turned appellant out of the house. In the early hours of the next morning, appellant returned to the house and engaged in a physical altercation with Hill. Johnson called the police to report the assault. Police arriving on the scene minutes later found Hill and Johnson dead from multiple stab wounds. Appellant ran out of the house; police caught and arrested him later that evening. Appellant was charged with and convicted of the offense of capital murder.¹ On March 20, 2004, in accordance with the jury's answers to the special issues, he was sentenced to death.² Direct appeal to this Court is automatic.³ Appellant raises eight points of error. Finding no merit to appellant's claims, we affirm his conviction and sentence.

1 Tex. Penal Code Ann. § 19.03(a).

2 Article 37.071, §§ 2(b), 2(e) and 2(g). Unless otherwise indicated all future references to Articles refer to the Code of Criminal Procedure.

3 Article 37.071, § 2(h).

I. GUILT

A. Mid-trial Publicity In his first point of error, appellant claims that the trial court erred in declining to inquire into whether the jury read a mid-trial newspaper article or heard the "Sammy and Bob" radio show, and whether they were affected by those events. The jury was seated and sworn and heard opening statements by both sides. Eleven witnesses were called by the State. The next day, before any other proceedings in front of the jury, the defense offered a newspaper article as an exhibit, requested that the court caution the jury against being exposed to news stories, and asked the court to inquire as to whether any of the jurors had read the article or heard the "Sammy and Bob Show" on the radio that morning. The trial judge admitted the article into evidence and noted that he had already warned the jury and had given the jury written instructions on the media twice. He said that he would admonish the jury again, but he thought it was a bad idea to ask jurors in the midst of a trial whether they had violated his prior instructions. He said that if, at the end of trial, anyone believed that jury misconduct had occurred, an affidavit could be requested then. He instructed the jury once more regarding the importance of refraining from reading, viewing, or listening to media accounts of the case. Defense counsel thanked the judge. Although appellant claims that the trial court erred in refusing his request to question the jurors mid-trial about the complained-of publicity, appellant, at the time he made his request, failed to state specific grounds for his request or otherwise bring to the court's attention the legal basis for conducting a mid-trial inquiry of the jury. Because appellant did not comply with Texas Rule of Appellate Procedure 33.1(a), he failed to preserve error. Furthermore, appellant points to the trial court's suggestion that counsel obtain juror affidavits at the end of trial if they thought juror misconduct occurred but complains that Texas Rule of Evidence 606(b) disallows such affidavits. A juror is strictly prohibited by Rule 606(b) from testifying about any matter or statement that occurred during jury deliberations or about the effect of anything on the juror's mind. Nevertheless, the rule provides that a juror may testify whether any outside influence was improperly brought to bear upon any juror. Newspaper articles and radio shows are "outside influences," and Rule 606(b) would not prohibit the introduction of evidence that the jurors had read the article or heard the radio program. Appellant could have determined at least whether any jurors had read the article or heard the program. Having failed to seek affidavits from the jurors to make this determination, he has failed to preserve any complaint regarding the trial court's failure to question the jurors. Moreover, appellant's claim fails on its merits. In Powell v. State,⁴ the defendant raised virtually the same issue on appeal, arguing that the trial court erred in refusing to poll the jurors, prior to trial but after they had been empaneled and sworn, about a newspaper article concerning the testimony of State witnesses at a hearing on the admissibility of DNA evidence. Although the trial court refused to poll the jury about the article, it admonished the jury on numerous occasions not to read any newspaper articles concerning the case.⁵ In upholding the trial court's refusal to poll the jury, we stated that the trial court did its best, under the circumstances, to preserve the integrity of the jury panel, reiterating its admonishments, although it refused to poll the jury.⁶ The trial court repeated its admonishments to the jury but refused appellant's request to question the jurors mid-trial about the newspaper article or radio show rather than risk exposing the jury to the existence of the publicity and its contents for the first time. In doing so, the trial court, like the court in Powell, preserved the integrity of the jury as best as it could, under the circumstances. Appellant's first point of error is overruled.

B. Extraneous Offense

In his fourth point of error, appellant claims that the trial court erred in admitting evidence of theft of money from the victim's purse. At trial, appellant objected to a photograph⁷ of a purse hanging on a doorknob, claiming that the purse was out of police custody for a week, that it would be used to show bad acts on the part of the appellant, that it violated his motion in limine, and that it was speculative, irrelevant, and there was no notice of it as an extraneous bad act. The State argued that the purse evidence was not an extraneous offense. The trial court overruled appellant's objection, saying that the evidence was too intricately interwoven with the facts of the case to be an extraneous offense, that it may have shown motive, and that there was no unfair prejudicial value. A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion.⁸ A reviewing court should not reverse a trial court whose ruling was within the "zone of reasonable disagreement."⁹ The trial court did not abuse its discretion in admitting the photograph of the purse. The purse did not constitute an extraneous offense, and no evidence was adduced before the jury that appellant stole anything from the purse. Police found the purse hanging in the master bedroom on the closet doorknob, in the midst of the crime scene, and photographed it at the initial investigation of the scene. It was within the zone of reasonable disagreement for the court to admit the photograph. Appellant's fourth point of error is overruled.

II. PUNISHMENT

A. Article 37.071 In his second point of error, appellant claims that he was denied due process by the "12-10 rule" of Article 37.071 §§ 2(d)(2)¹⁰ and 2(f)(2).¹¹ Appellant argues that these two sections, in conjunction with Article 37.071 § 2(a)(1),¹² deprive him of due process because the "12-10 rule": (1) creates an impermissible risk of arbitrariness; (2) denies a defendant's right to individualized sentencing; (3) denies a defendant's right to a fair and impartial jury; (4) prevents a defendant from receiving effective assistance of counsel; and (5) has a coercive effect upon the jury. We have repeatedly rejected constitutional challenges to the "12-10 rule"¹³ and we have repeatedly held that there is no constitutional violation in failing to instruct jurors on the effects of their answers.¹⁴ Appellant's second point of error is overruled. In his third point of error, appellant claims that the trial court erred in failing to sustain his challenge to the constitutionality of the Texas death penalty scheme. In pre-trial motions, appellant argued specifically that Article 37.071 is unconstitutional due to its failure to assign a burden of proof on the mitigation special issue. Appellant claims that, despite the decision in Jurek v. Texas,¹⁵ the Texas death penalty statute no longer passes constitutional muster because the sentencing scheme upheld in Jurek is not the one in effect today. He claims that the Supreme Court did not decide in Jurek whether the special issues properly guide the trier of fact on the question of whether the defendant would actually commit criminal acts of violence that would constitute a continuing threat to society. Also, he claims that Article 37.071 unconstitutionally places on the defendant the burden to produce mitigating evidence sufficient to convince the jury that a life sentence, rather than a death sentence, should be imposed. Finally, appellant argues that the jury's answer to the future dangerousness special issue is no longer subject to meaningful appellate review, and "however/whatever this Court calls its current standard of review," the chance that a death sentence will ever again be reversed or vacated for insufficient evidence is highly unlikely. He argues that in the fifteen years between 1976 and 1991, the Court found the evidence to support a finding of future dangerousness insufficient ten times, but the Court has not done so once in the years since. Because appellant did not raise at trial his contention that Jurek is no longer valid, he has failed to preserve this claim. But even if he had preserved this contention, it would fail. In support of his claim, appellant refers us to Martinez v. State,¹⁶ in which we said that we found it "inexplicable" that the Court had found evidence of future dangerousness insufficient in a prior case where the defendant tied a woman to her bed, raped her, and stabbed her fourteen times.¹⁷ The State's expert in the earlier case testified that the murder was a "typical sex murder" that was brutal but not "extremely" brutal.¹⁸ The Court concluded from this that the witness thought the murder was "not shocking or otherwise extraordinary."¹⁹ Stating that the circumstances of the offense were not so heinous that they evinced an aberration of character so peculiarly dangerous as alone to justify an affirmative response to the special issue, this Court considered whether there was other evidence of future dangerousness, and ultimately found that there was not.²⁰ Although appellant couches this complaint in terms of the constitutionality of the statute, his argument appears to be a complaint that the Court, "as it has been comprised since 1995," is less willing to overturn a jury's finding of future dangerousness than the Court was before that date. Appellant complains that the Court "eschew[s] . . . any need for consideration of the defendant's peculiar and personal circumstances," and concludes that it is very unlikely that there will ever again be a reversal for insufficient evidence. Appellant misapprehends the role of an appellate court. It is the jury that decides whether to believe that the defendant is possessed of personal circumstances that merit consideration. Our review is in the light most favorable to the jury's determination.²¹ Article 37.071 is not rendered unconstitutional by this Court affording the proper degree of deference to the jury's decision. Moreover, the Texas death penalty scheme has not changed substantially since Jurek was decided, and this Court has repeatedly²² rejected claims that inconsistences in the various capital-sentencing schemes amount to the "quintessential arbitrariness" condemned by Furman v. Georgia. ²³ And to the extent that Article 37.071 has changed, it has been largely to the benefit of defendants charged with capital murder.²⁴ Statutory revisions that are likely to narrow the range of persons sentenced to death cannot defeat the constitutionality of a statute that was declared constitutional at a time when its reach was greater than it is now. With regard to the claim that appellant did preserve, we have held that the absence of a burden of proof in the mitigation issue does not violate the Eighth Amendment²⁵ or the Due Process Clause of the Fourteenth Amendment.²⁶ Appellant has not shown that the death penalty statute is unconstitutional as applied to him in his particular case.²⁷ Appellant's third point of error is overruled.

B. Method of Execution

In his eighth point of error, appellant claims that the trial court erred in de facto overruling, by failing to rule on, appellant's motion to preclude use of lethal chemicals in administering the death penalty. Appellant raised pretrial a motion to preclude use of the death penalty, specifically the use of pancuronium bromide in the administration of lethal injection; the trial court stated that it would defer ruling on the motion until after the jury returned its punishment verdict. When the trial court called for objections to the punishment charge, appellant reurged the motion. The trial court did not rule on the motion. After the punishment verdict, the trial court asked appellant if there was any reason why the court should not proceed to sentencing, and appellant said there was no reason. The trial court then asked if there was anything further from appellant prior to the court assessing sentence, and appellant said there was not. Appellant therefore did not reurge the motion after the punishment verdict. As a prerequisite to presenting a complaint for appellate review, the record must show that the trial court ruled on the request, objection or motion, either expressly or implicitly, or refused to rule and the complaining party objected to the refusal.²⁸ In this case, the trial court did not expressly or explicitly rule on appellant's motion or refuse to rule on the motion, and appellant did not object to any alleged refusal to rule. Under Rule 33.1, appellant failed to preserve this issue for his appeal by failing to obtain an adverse ruling from the trial court. Appellant's eighth point of error is overruled.

C. Expert Witness Testimony

In his fifth point of error, appellant claims that the trial court erred in admitting psychiatric and psychological evidence regarding future dangerousness. Specifically, appellant claims that the trial court erred in admitting testimony of psychiatrist Dr. Richard Coons about his opinion that there was a probability that appellant would commit acts of violence in the future, as it failed to satisfy the requirements of Kelly v. State ²⁹ and Daubert v. Merrill Dow Pharmaceuticals. ³⁰ Under Kelly, the proponent must demonstrate by clear and convincing evidence the reliability of the scientific evidence by satisfying three criteria: (1) the underlying scientific theory is valid; (2) the technique applying the theory is valid; and, (3) the technique was properly applied on the occasion in question.³¹ Appellant contends that the evidence failed to satisfy any of the three criteria. Appellant first argues that the underlying scientific theory in this case is invalid because it is not possible for a psychiatrist to reach a conclusion whether there is a probability that someone will commit criminal acts of violence that would constitute a threat to society. Appellant relies on a statement³² by the American Psychiatric Association that psychiatric predictions of long-term future dangerousness are unreliable.³³ He states further that, according to the APA, in order to apply this theory, the technique must involve an individual clinical interview and review all possible data. Appellant asserts that Dr. Coons neither conducted an interview nor reviewed all possible data. A trial court's ruling on the admissibility of scientific expert testimony is reviewed for an abuse of discretion.³⁴ Under Rule 702,³⁵ it is the trial court's responsibility to determine whether proffered scientific evidence is sufficiently reliable and relevant to assist the jury.³⁶ The Kelly requirement of reliability applies with less rigor to the social sciences than to the hard sciences.³⁷ When the "soft" sciences are at issue, the trial should inquire: (1) whether the field of expertise is a legitimate one; (2) whether the subject matter of the expert's testimony is within the scope of that field; and (3) whether the expert's testimony properly relies on or utilizes the principles involved in the field.³⁸ The trial court did not abuse its discretion in allowing the testimony of Dr. Coons on the issue of future dangerousness.³⁹ Dr. Coons testified outside the presence of the jury that he had reviewed offense reports, jail records, military records, medical records, parole records, and probation records, including the psychological evaluation that had been performed on appellant, and the evidence in this case. He also looked at such criteria as the appellant's history of violence, his attitude toward violence, his psychology and usual behavior, the instant offense, whether appellant has a conscience, and the society that appellant would be in. With regard to capital murder cases, he said that he had previously testified on future dangerousness 50 or 60 times, and had never been rejected as a witness. Appellant objected that "what's going to be offered is an opinion based on materials that have already been made available to the jury to express an ultimate opinion on the issue of future dangerousness." The claims appellant raises on appeal do not comport with his objection at trial; thus, he has failed to preserve his complaint for review.⁴⁰ Even if appellant had preserved the issue for appeal, the trial court did not err in admitting Dr. Coons' testimony. Dr. Coons testified before the jury as to his qualifications and expertise. He reiterated his testimony given outside the jury regarding the materials he had reviewed. He testified that if there is enough data, it is possible to reach a conclusion about whether there is a probability that someone will commit criminal acts of violence that would constitute a continuing threat to society, and he reiterated the criteria he looked at with regard to appellant. We have held that psychological and psychiatric testimony is admissible during the punishment phase of a capital trial.⁴¹ Moreover, we have repeatedly recognized that testimony from mental health experts is relevant to the issue of future dangerousness.⁴² Although Dr. Coons did not conduct an individual clinical interview, there is no such prerequisite to give his expert opinion on future dangerousness.⁴³ Given the record made by Dr. Coons and the relevance of his testimony, the trial court did not abuse its discretion in admitting his expert testimony. Appellant's fifth point of error is overruled. In his sixth point of error, appellant claims that the trial court erred in admitting the testimony of Royce Smithey on prison conditions because he was not qualified as an expert under Daubert and Kelly and his testimony was unreliable and irrelevant. Outside the presence of the jury, appellant requested a Daubert hearing under Rule 702⁴⁴ to determine whether Smithey was qualified to testify about prison conditions and whether his testimony would assist the trier of fact.⁴⁵ Appellant also asked the trial court to determine whether Smithey had sufficient information to render an expert opinion in this particular case, as required by Rule 705.⁴⁶ The State informed the court that Smithey was to testify about the difference between conditions in the general prison population and in death row for purposes of proving future dangerousness, although he was not going to testify about whether appellant would be a future danger. Appellant argued that Smithey was not qualified to testify about the probability of violence within the prison system, because he had not conducted or relied on accepted research. The trial court overruled appellant's Rule 702 objection and noted that such testimony probably did not require empirical, scientific evidence. Specialized knowledge that qualifies a witness to give an expert opinion may be derived from specialized education, practical experience, a study of technical works, or a combination of these.⁴⁷ Smithey testified that he was the chief investigator for the Special Prosecution Unit and had been with the unit for eighteen and a half years. He testified that his unit investigates felony offenses occurring inside the prison system to be tried in district courts, and therefore he has observed on numerous occasions the day-to-day functions of different prison units. Because of Smithey's specialized knowledge and practical experience, the trial court did not abuse its discretion in admitting his testimony under Rule 702. Appellant's sixth point of error is overruled.

D. Double Jeopardy

In his seventh point of error, appellant claims that the trial court erred in admitting evidence of extraneous offenses of which appellant had been acquitted, because the admission violated the Fifth Amendment prohibition against double jeopardy. At the punishment phase of trial, evidence was admitted of appellant's prior attack on Henry Maciel, which caused his death. Appellant was tried for murder, but convicted of the lesser-included offense of aggravated assault. The United States Supreme Court has held that double jeopardy protections are inapplicable to sentencing proceedings because the determinations at issue do not place a defendant in jeopardy for an "offense."⁴⁸ Moreover, pursuant to Article 37.071, § 2(a)(1), a trial court has wide discretion in admitting evidence, including extraneous offenses, relevant to the jury's determination of a capital murder defendant's death-worthiness.⁴⁹ Extraneous offenses are admissible at the punishment phase of a capital murder trial whether they are adjudicated or unadjudicated, and are usually offered on the issue of future dangerousness.⁵⁰ When offering an extraneous offense at the punishment phase of a capital trial, the State neither has to prove all of the elements of the extraneous offense⁵¹ nor prove beyond a reasonable doubt that the defendant committed the extraneous offense.⁵² The double jeopardy clause of the Fifth Amendment prohibits a second prosecution of an individual for the same offense.⁵³ In this case, appellant was not retried for and convicted of the previous murder. The evidence of the prior attack on Henry Maciel was offered and admitted at punishment to assist the jury in resolving whether appellant posed a future danger to society, and not to prove beyond a reasonable doubt that appellant committed the prior attack. Even when there is a complete acquittal of an offense, evidence of the act upon which the prosecution was based is admissible in the punishment phase of a capital murder trial.⁵⁴ Here, appellant was convicted of a lesser-included offense. The double jeopardy clause was not violated by the trial court's admission of the evidence of appellant's extraneous offense. Appellant's seventh point of error is overruled.

WOMACK, J., filed a concurring opinion, in which MEYERS, JOHNSON, and COCHRAN, JJ., joined.

I agree with the Court's holding ( ante, at 13) that the appellant did not make at trial the complaint he now raises on appeal about the psychiatrist's evidence. Since my Sister Johnson has suggested improvements to the questions that are asked of such "experts" when they offer their predictions of the likelihood that defendants will commit criminal acts of violence in the future ( post), I shall take this opportunity to suggest a question that may be more important: How have the earlier predictions turned out? Hundreds of defendants have been convicted of capital murder in trials that required juries to decide such an issue since it was enacted in 1973. In no small number of those trials, "experts" offered their opinions. In every case in which a defendant was convicted of capital murder, he was imprisoned. And it is in prison that a defendant's future conduct will take place, since the only possible sentences are death or imprisonment for life. The records of the capital murderers' conduct after conviction are at the prison. They are public records, I suppose. Why doesn't somebody ask an expert witness, has he (or any other "expert") bothered to look at the records? If he has, how did the predictions turn out? If no one has looked, why not? Isn't science the careful and systematic study of observations, and tests of the conclusions that are based on the observations?

CONCURRING OPINION

JOHNSON, J., filed a concurring opinion, joined by PRICE, J.

By definition, a probability is the result of many observations of a defined reference group. For instance, after many observations are made and analyzed, we can say with some certainty that one out of two marriages will fail or that seven of ten professional football players will retire because of injury. What we cannot say with any certainty is which marriages will fail or which football players will suffer career-ending injuries. If we mine the treasure trove of statistics that is major league baseball, we may discover that, over a number of seasons, left-handed batters reached first base safely three times out of ten at-bats when facing right-handed pitchers, but only two times out of ten at-bats when facing left-handed pitchers. One hundred sixty-two games per team, times the number of left-handed batters, times 3 or so at-bats per game, times 30 teams, is a large number of observations of a defined reference group, left-handed professional baseball players who bat. From such data, we may then reasonably conclude that the probability of a left-handed batter reaching first base safely is 30% if facing a right-handed pitcher and 20% facing a lefty, but we cannot say where, when, or against which pitcher a given batter will get his hits. Nor can we say that every left-handed batter will bat .300 against right-handed pitchers; we can state only that, over a season, the average for all left-handed batters will be close to .300. If we want to apply those probabilities to someone who does not play major league baseball and also desire reliability, we can apply those probabilities only to those who are like the members of the reference group, such as left-handed Japanese professional baseball players. If we try to apply those probabilities to right-handed batters, sand-lot players, or minor-league players, any predictions made are likely to be proven wrong. If we want to know the probability that an individual will engage in a certain behavior within a given time frame, the only probability that can be accurately and truthfully stated must assume a person who is like the members of the reference group on which the estimate of probability is based. By its very nature, probability cannot, and does not, exist based on one observation of a group of one, nor can it be used to predict the behavior of a given individual. It is misleading to purport to be able to state a probability that a given individual will act in a given way in the future. Therein lies the difficulty with asking witnesses to testify about the probability that a given defendant will be a danger in the future. A probability that a single individual will engage in a given behavior does not exist. The probability that does exist is the likelihood that a person like that individual will engage in a given behavior. For example, a psychiatrist may be asked to estimate the chances that a given mental patient will harm himself or someone else within the next year. The questioner may ask for that information in at least two ways, one of which provides valid information, the other of which provides merely a guess. If the question asks the psychiatrist to state the probability that a given individual will harm someone, any answer in terms of probability is meaningless; to make such an answer reliable requires a working crystal ball. The proper and appropriate question asks the psychiatrist to estimate the probability that a person like the given individual, that is, a person with a similar mental history, will harm someone within the next year. That probability can be calculated by reviewing large numbers of observations of mental patients with similar mental disorders. The reliability of the estimate of probability increases as the number of observations increases. With sufficient observations, an answer based on that probability may offer helpful information. Again, we may be able to say that a given number of mental patients will harm someone in the next year, but we still cannot say with any certainty which patients will comprise that number. The proceedings in capital trials are on much more stable ground if the future-dangerousness witnesses are questioned about the probability of future violence by a person who is like the defendant in, for example, background, criminal history, mental status, and demonstrated propensity for violence against others. Sometimes it is clear that the witness is purporting to be able to predict the future as to the individual on trial.¹ It may be that some witnesses are being asked the wrong question and yet, basing the answer on their knowledge about many similar individuals, answering the correct one.² The only way to be sure is to ask the question in the correct form. I concur in the judgment of the Court.

1 See, e.g., Barefoot v. Estelle, 463 U.S. 880, 905 n. 11 (1983) (without having examined Barefoot, Dr. Grigson testified that there was a 100% probability that Barefoot would commit violent acts in the future). Dr. Grigson may have been committing the common mistake of conflating probability and possibility. Probability does not exist without large numbers of observation of a defined reference group. However, almost anything that does not violate the laws of physics is at least theoretically possible. Possibility does not require numerous observations because a single attempt may prove the theory. The basic question addressed is different. The question for possibility is, can this event happen? The question for probability is, how often does this event happen?
On the other hand, Dr. Grigson may have been asked the wrong question, but answered the correct one: he stated that he was "`100% sure' that an individual with the characteristics of the one in the hypothetical would commit acts of violence in the future. . . ." Id. (Emphasis added.) Even if that were the case, he stretched the limits of predictability; "in response to Dr. Grigson's assertion that he was `100% sure' that an individual with the characteristics of the one in the hypothetical would commit acts of violence in the future, Dr. Fason testified at the habeas hearing that if a doctor claimed to be 100% sure of something without examining the patient, `we would kick him off the staff of the hospital for his arrogance.'" Id.

2 "[T]he State called two expert witnesses, Dr. George Parker, a psychologist, and Dr. Richard Koons, a psychiatrist. Both of these doctors agreed that accurate predictions of future dangerousness can be made if enough information is provided; furthermore, they both deemed it highly likely that an individual fitting the characteristics of the one in the Barefoot hypothetical would commit future acts of violence." Barefoot at 901. (Emphasis added.)