Griffith v. State

MANSFIELD, J.,

delivered the concurring opinion.

I agree with the majority that the trial court did not abuse its discretion in not providing appellant with the funds to retain an expert, psychologist Theodore Blau. However, for the reasons stated herein, I believe, assuming, arguendo, that if it did err, the error was clearly harmless under Texas Rule of Appellate Procedure 44.2 or under its predecessor, Rule 81(b)(2).

In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court held an indigent defendant has a due process right to state-funded expert assistance where the defendant makes a preliminary showing the issue for which he seeks said expert assistance is likely to be a significant factor at trial.1 In Ake, unlike the present case, the defendant was not provided with any expert assistance on either the issue of insanity (there was considerable evidence he may well have been insane) or on the issue of future dangerousness (the only evidence of future dangerousness presented at the punishment phase was the unrebutted testimony from the guilt phase of the State’s psychiatric witness).

The present case could hardly be more dissimilar to Ake. First, the State presented considerable non-psychiatric evidence at the punishment phase, including graphic testimony as to appellant’s propensity for violent behavior. This evidence included the following:

(a) evidence appellant was fired in January of 1993 from his position as a Harris *293County deputy sheriff after he was convicted of assaulting his ex-wife and girlfriend.
(b) testimony of Cheryl Stanley, married to appellant from 1971 to 1981, describing several assaults made by appellant against her and their daughter. One of the assaults resulted in several of Stanley’s ribs being broken and another involved appellant holding a gun to her head.
(c) Lola Atkinson, who married appellant in 1989, testified as to appellant’s violent temper and described instances when he pulled a gun on her and broke furniture. She testified that after they separated, he broke down the door, stole her money, and broke the windows in her car. She testified she reported the last incident to the Sheriffs Department.
(d) Brenda Lockridge, who started dating appellant in October 1992, testified appellant had a bad temper and, on one occasion, choked her and pulled a gun on her. Then, three weeks later, he went into a rage, destroyed items in his apartment, held her hostage and threatened to kill her with a pair of scissors. Lockridge testified, after twelve hours, she escaped and called the police. This incident led to appellant’s arrest and conviction for assault.
(e) Hilda Garcia testified she met appellant in 1993 and moved in with him in March 1994. On one occasion she said he slapped her and chipped her tooth. On another occasion he destroyed some of her property and hit her in the breasts.
(f) Karen James, a teller at Guardian Savings and Loan, testified appellant entered the bank on October 14, 1994, pulled a gun and demanded money. After she gave him the money he shot her twice in the head.
(g) Loan Khuu testified appellant, on October 28, 1994, entered the bridal salon where she worked, pulled a gun and demanded all the money. After she gave him the money, appellant forced her into a back room and forced her at gunpoint and knife point to perform oral sex on him. He tied her up and left.

Appellant presented evidence at the punishment hearing including testimony from Cheryl Stanley and several police officers, all of whom testified he was a good police officer and was very devoted to his job. Appellant also presented the testimony of two psychologists, Freichman and Hopkinson, and a psychiatrist, Young. These three experts testified appellant suffered from a borderline personality disorder. They testified appellant was unable to control his anger but the structure he had in his life while a police officer “held him together.” Dr. Young opined the structure provided by prison life would likely prevent him from committing future acts of violence, especially if appellant had no contact with women. The complainant in the instant case is a woman.2

The State then presented the testimony of FBI agent Brantley. Before joining the FBI, Brantley was employed as a psychologist by a maximum security prison where he evaluated the future dangerousness of the inmate population. Brantley testified he studied the crime scene, autopsy photographs, the offense report and appellant’s school and work records. He also interviewed Karen James, Loan Khuu and one of the appellant’s girlfriends and visited the crime scene. He did not interview appellant. Based on his review of the case, Brantley opined appellant posed a future danger to society. He opined further that appellant, if confined, would likely prey on weaker male inmates.

The defendant in Ake was provided with no expert assistance at the punishment phase; the only evidence presented on the issue of future dangerousness was testimony at the guilt phase by State experts that, in their opinion, Ake would be a future danger. Ake’s indigency rendered him unable to present evidence favorable to him on the key issue of future dangerousness, clearly a violation of his federal constitutional right to due process.

In the present case, appellant was provided three expert witnesses, all of whom testified on his behalf at punishment. There was considerable expert testimony appellant would not be a future danger if confined in *294the environment of the penitentiary. Even if one assumes, arguendo, appellant should have been provided funds to retain Dr. Blau as an expert witness so as to potentially rebut Brantley’s testimony,3 in light of the extensive expert assistance he was provided, the failure of the court to do so, in my opinion, would not be error of a magnitude requiring reversal, assuming it was error at all.

Furthermore, several witnesses testified as to the commission of many violent acts committed against women by appellant over a more than twenty-year period of time. These acts included violent assaults resulting in significant injuries, destruction of property, aggravated robberies, aggravated sexual assaults and attempted murder. These acts show appellant has been dangerous to society for many years and a rational jury could conclude he would continue to be so in the future. The facts of the instant offense, a vicious capital murder by stabbing with evidence of aggravated sexual assault, are evidence of appellant’s dangerousness. Under the standards set forth by this Court in Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987) and Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996), the evidence is more than factually sufficient to support the jury’s affirmative answer to the future dangerousness special issue. Indeed, it is hard to imagine any rational jury, given this evidence, could find appellant would not be a future danger to society.

In light of all the evidence presented at the punishment phase, it is my opinion that the failure of the trial court, if one assumes this was error, to provide funds to retain Dr. Blau did not have a significant influence on the jury’s affirmative answer as to the first special issue. It is also my opinion that, even if one assumes this failure was error of a constitutional dimension, any such error did not contribute, beyond a reasonable doubt, to the jury’s punishment verdict. See Tex. R.App. Proe. 44.2(a) and 44.2(b). See also, Kotteakos v. U.S., 328 U.S. 750, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997).

Because I agree the trial court did not err in failing to provide appellant with funds to retain Theodore Blau, I join the opinion of the Court.

. In Ake, a capital case, the State put on psychiatric testimony at the guilt/innocence phase that Ake would be a future danger to society. Ake's defense was insanity, and he was denied state funds to hire psychiatric assistance to rebut the State's psychiatric evidence. At the punishment phase, no new evidence was presented, and Ake had no expert to testify either as to future dangerousness or to mitigation.

. Appellant stabbed the complainant to death while in the course of committing robbery. There was also evidence appellant had sexually assaulted her.

. Appellant contends Brantley's testimony was based largely on a technique known as "profiling," and only Blau was equipped, by training and experience, to cast doubt as to the validity of profiling. A review of the record, however, supports the State's contention that Brantley’s opinion was, at most, tangentially affected by profiling.