George Edward CLARK, Appellant, v. The STATE of Texas, Appellee, 627 S.W.2d 693

OPINION TOM G. DAVIS, Judge. Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(2). After finding appellant guilty, the jury answered “yes” to the first two special issues submitted under Art. 37.-071(b), V.A.C.C.P. Punishment was assessed at death. Appellant was convicted of murdering Ann Tracy Drummond during the course of an aggravated rape in Austin on March 3, 1978. The victim died as a result of thirty-eight stab wounds to the neck, chest, abdomen and back.

In his tenth ground of error, appellant maintains the court erred in overruling his objection to testimony presented during the punishment phase of the trial by Dr. Richard Coons. Appellant maintains such testimony was admitted in violation of his rights against self-incrimination and assistance of counsel. Officer Roger Napier, of the Austin Police Department, testified that at 1:00 a. m., on March 6, 1978, appellant signed a written statement admitting his guilt in the instant offense.

Officer Doyne Bailey, of the Austin Police Department, then filed a complaint against appellant charging him with the capital murder of Drummond. At 4:30 a. m., appellant appeared before the Honorable Harriet M. Murphy, Associate Municipal Judge for the City of Austin, and was administered his warnings pursuant to Art. 15.17(a), V.A.C.C.P. A warrant of arrest was issued by Judge Murphy and appellant was ordered held without bond. On March 7, 1978, the Honorable Hubert Gill was appointed to represent appellant.

An indictment charging appellant with the capital murder of Drummond was returned and filed on March 9, 1978. Coons testified that he is a psychiatrist practicing in Austin. He related that during the course of his practice he has examined four to six hundred criminal defendants and has testified in approximately one hundred trials. On March 6, 1978, Coons was requested to interview appellant by the Travis County District Attorney’s Office.

He related that based upon his past experience, it was understood that in a potential capital murder case, he was to make an evaluation of “dangerousness” in addition to considering the issues of competency and sanity. Coons interviewed appellant for approximately eighty minutes in the Austin city jail on March 6. With regard to any warnings given appellant as to the purpose of the interview, Coons testified: “Q.

Did you give or did you hear anybody give George Edward Clark any warnings concerning any right to remain silent, any right to an attorney, any statement that whatever he said could be used against him at the punishment phase of the trial in order to try to convince the jury to give him the death penalty? “A. Did I hear him— “Q. Did you give him those warnings or hear anyone else give him those warnings? “A. I did not specifically.

I mean I told him who I was, where I was from and the purpose that I was seeing him, but I did not go into a specific description of exactly how my information might be used.” Coons was questioned relative to appellant being represented by counsel at the time of the interview and stated as follows: “Q. At that time did he have an attorney, to your knowledge? “A. I don’t recall. “Q. You don’t recall seeing an attorney there or having personal contact with one? “A. No.” During the punishment phase of the trial, Coons testified as follows: “Q.

Were you able to make a diagnosis of what type of, let’s say, personality the defendant has — traits, personality traits? “A. I would say his personality traits are those of inadequacy and immaturity, and basically kind of a dependent overcompensating person who has some conscience defects. “Q. Doctor, do you have an opinion as to whether there is a probability that the defendant would commit criminal acts of violence which would constitute a continuing threat to society? “A. Yes. “Q. And what is that opinion? “A. I think there is that probability. “Q. And why do you think there is that probability? “A.

I think that Mr. Clark does not recognize some personality traits that he has, and I think that he has some conscience defects, and I think that he has a style of dealing with threat, an aggressive style of dealing with threats, and I think that he would be likely to put himself in positions where he would be threatened, just like abducting a girl is going to put you intellectibly into a position of being threatened. Somewhere down the line forcibly abducting an individual will almost always forcibly put you in a threatening situation. “Q.

Did you have an opinion as to whether or not he killed her deliberately? “A. Yes. I think that his behavior and acts were deliberate in the silencing her, and the result of silencing her was her death. And I would consider that he was willing to go to that level to silence her and stem the threat, and I believe his behavior was deliberate on that occasion in that regard." The record does not reflect that appellant raised the issues of competency or sanity during trial. After Coons testified, appellant called Dr. Richard Rada, a psychiatrist from Albuquerque, New Mexico.

Rada testified that at the request of appellant’s counsel, he had examined appellant for four and one-half hours on July 2, 1978. In response to questions from appellant’s counsel, Rada testified: “Q. Let me ask you this: Now, assuming that the defendant is sentenced to a term of life imprisonment in the Texas Department of Corrections, do you have an opinion on whether or not there is a probability that he would commit criminal acts of violence that would constitute a continuing threat to society? “A. Do I have an opinion on that? “Q. Yes. “A. Yes, I do. “Q. What is that opinion? “A. No, he would not. “Q.

In terms of using the word ‘deliberate,’ how would you define that word? “A. Well, I would understand the word deliberate to mean that somebody can deliberate; they can rationally look at various alternatives and decide how they are going to proceed in a particular situation. “Q. With that definition in mind, do you have an opinion as to whether or not the conduct of the defendant in killing the deceased was done deliberately and with the reasonable expectation that death would occur? “A. Yes, I have an opinion on that. “Q. What is that opinion? “A.

No, that that was not the case.” At the time of the examination by Coons, appellant was in custody and his competency to stand trial or sanity at the time of the offense had not been raised. Indeed, such issues were never raised at trial by appellant. The interview was initiated through a request to Coons by the Travis County District Attorney’s Office with an “understanding” that he was to explore the issue of “dangerousness” in that the case was “potentially a capital murder.” The record does not contain an order from the court directing Coons to examine appellant.

The record fails to reflect that appellant was advised before the pretrial psychiatric examination that he had a right to remain silent and that any statement he made could be used against him at the punishment phase. In Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), the Supreme Court considered the necessity of such warnings in a factual situation similar to that now presented and stated as follows: “The considerations calling for the accused to be warned prior to custodial interrogation apply with no less force to the pretrial psychiatric examination at issue here.

Respondent was in custody at the Dallas County Jail when the examination was ordered and when it was conducted. That respondent was questioned by a psychiatrist designated by the trial court to conduct a neutral competency examination, rather than by a police officer, government informant, or prosecuting attorney, is immaterial. When Dr.

Grigson went beyond simply reporting to the court on the issue of competence and testified for the prosecution at the penalty phase on the crucial issue of respondent’s future dangerousness, his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a post-arrest custodial setting. “A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.

Because respondent did not voluntarily consent to the pretrial psychiatric examination after being informed of his right to remain silent and the possible use of his statements, the State could not rely on what he said to Dr. Grigson to establish his future dangerousness.” In the instant case, appellant did not initiate the psychiatric evaluation with Coons. However, appellant introduced psychiatric evidence from Rada after Coons had testified.

This Court has held that the introduction of evidence seeking to meet, destroy or explain erroneously admitted evidence does not waive the error or render the error harmless. Craddock v. State, Tex.Cr.App., 553 S.W.2d 765; Nicholas v. State, Tex.Cr. App., 502 S.W.2d 169. We find that the introduction of Rada’s testimony by appellant did not waive the error appellant seeks to present with regard to Coons’ testimony. The prosecution has the burden of proving that a person in custody knowingly and intelligently waived the privilege against self-incrimination. Hill v. State, Tex.Cr.App., 429 S.W.2d 481; McCandless v.

State, Tex.Cr.App., 425 S.W.2d 686. In the instant case, the State failed to prove that appellant voluntarily consented to the pretrial psychiatric examination by Coons after being informed of his right to remain silent and that any statement made could be used against him during the punishment phase. We find that Coons’ testimony was admitted in violation of appellant’s right against self-incrimination as provided by the Fifth and Fourteenth Amendments to the United States Constitution and Art. I, Sec. 10 of the Texas Constitution.

Appellant further urges that Coons’ testimony was admitted in violation of his right to the assistance of counsel. He maintains that he should have been given an opportunity to consult with counsel concerning his participation in the examination prior to the time he was interviewed by Coons. In Estelle v.

Smith, supra, the Supreme Court stated as follows with regard to a defendant’s right to the assistance of counsel before submitting to a pretrial psychiatric interview: “The Sixth Amendment, made applicable to the states through the Fourteenth Amendment, provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.’ The ‘vital’ need for a lawyer’s advice and aid during the pretrial phase was recognized by the Court nearly 50 years ago in Powell v. Alabama, 287 U.S. 45, 57, 71 [53 S.Ct. 55, 59, 65, 77 L.Ed. 158] (1932).

Since then, we have held that the right to counsel granted by the Sixth Amendment means that a person is entitled to the help of a lawyer ‘at or after the time that adversary judicial proceedings have been initiated against him . . . whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ Kirby v. Illinois, 406 U.S. 682, 688-689 [92 S.Ct. 1877, 1881-1882, 32 L.Ed.2d 411] (1972) (plurality opinion); Moore v. Illinois, 434 U.S. 220, 226-229 [98 S.Ct. 458, 463—165, 54 L.Ed.2d 424] (1977). “Here, respondent’s Sixth Amendment right to counsel clearly had attached when Dr.

Grigson examined him at the Dallas County Jail, and their interview proved to be a ‘critical stage’ of the aggregate proceedings against respondent. See Coleman v. Alabama, 399 U.S. 1, 7-10 [90 S.Ct. 1999, 2002-2003, 26 L.Ed.2d 387] (1970) (plurality opinion); Powell v.

Alabama, supra [287 U.S.] at 57 [53 S.Ct. at 59], Defense counsel, however, were not notified in advance that the psychiatric examination would encompass the issue of their client’s future dangerousness, and respondent was denied the assistance of his attorneys in making the significant decision of whether to submit to the examination and to what end the psychiatrist’s findings could be employed.” (Footnotes omitted). In the instant case, the record fails to reflect that appellant was afforded an opportunity to consult with counsel prior to the examination by Coons.

At the time of the examination, Bailey had filed a complaint against appellant charging him with the capital murder of Drummond. The record reflects that counsel was appointed on the day after Coons interviewed appellant. We conclude that Coons’ testimony was admitted in violation of appellant’s right to the assistance of counsel as provided by the Sixth and Fourteenth Amendments to the United States Constitution and Art. I, Sec. 10 of the Texas Constitution. Having determined that Coons' testimony was erroneously admitted, we must determine whether the error requires reversal.

The test for harmless constitutional error is not whether the conviction could have been had without the improperly admitted evidence, but whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. Clemons v. State, Tex.Cr.App., 605 S.W.2d 567; Esquivel v. State, Tex.Cr.App., 595 S.W.2d 516. We find it of significance to note that Coons was the only witness presented by the State during the punishment phase of the trial.

The circumstances of the capital offense itself, if severe enough, can be sufficient to support an affirmative finding as to the probability of future acts of violence. While the offense herein was of an extreme brutal nature, the issue we must confront is not whether the facts of the crime, standing alone, would support the finding, but whether the testimony of Coons might have contributed to the jury’s verdict during the punishment phase. We conclude that there was a reasonable possibility that Coons’ testimony might have contributed to the jury’s verdict during the punishment phase of appellant’s trial.

The erroneous admission of Coons’ testimony requires a reversal of appellant’s conviction. See Holloway v. State, Tex.Cr.App., 613 S.W.2d 497. In his eleventh ground of error, appellant contends the evidence is insufficient to support the jury’s affirmative finding that there is a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. Art. 37.071(b)(2), supra. He maintains that “excluding the inadmissible psychiatric testimony of Dr.

Coons, there is insufficient evidence in the record to support the death penalty.” The situation here presented is not unlike that before this Court in Collins v. State, Tex.Cr.App., 602 S.W.2d 537. There, the defendant was convicted of rape of a child with hearsay evidence being relied upon to prove penetration. It was urged that in view of the trial error in admitting the hearsay evidence, the evidence remaining, absent the hearsay, was insufficient to support the defendant’s conviction.

The Court declined the defendant’s request to review the sufficiency of the evidence and stated: “Having found error and made the determination that it is reversible, we should simply reverse the judgment of conviction and remand for a new trial if the State be so advised, without undertaking to examine appellant’s contention that the evidence is insufficient to convict. What evidence? That error-tainted evidence which the jury heard and obviously considered or that which remains after the contamination is metaphysically eliminated?

The former manifestly will not do and the latter becomes an exercise in the abstract — “forming conclusions for ourselves” is the way the court put it more than 120 years ago in Draper v. State [22 Tex. 400 (1858) ]. “In pursuing such a fanciful endeavor we do an injustice to the State, for necessarily it must be assumed what could well be absolutely contrary to the case: that the prosecuting attorney mustered, assembled and laid before the jury all evidence known and available to him.

We torture the rights of appellant as well, for he is entitled to have his fate decided by a jury upon competent evidence under proper instructions from the trial court. For this Court to award appellant the acquittal he desires on ‘insufficient’ evidence without assurance that the State has exhausted its resources — and this record surely does not provide it — thwarts the quite valid public concern that the guilty be punished.

Yet, to affirm his conviction on spoiled evidence serves neither the criminal justice system nor the constant effort to inform its participants of errors that must be corrected.” As noted above, appellant urges that absent Coons’ testimony, the evidence is insufficient to support the jury’s affirmative finding on special issue number two. We find that appellant’s eleventh ground of error need not be addressed. The recent holding of the United States Supreme Court in Estelle v. Smith, supra, dictates that the admission of Dr.

Coons’ testimony at the punishment stage of the trial constituted violations of appellant’s rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and requires that the judgment be reversed and cause remanded.