Powell v. State, 742 S.W.2d 353 (Tex.Crim.App. 1987). (Direct Appeal)

Defendant was convicted in the 167th Judicial District Court, Travis County, Tom Blackwell, J., of capital murder, and was sentenced to death. He appealed. The Court of Criminal Appeals, McCormick, J., held that defendant, by presenting insanity defense in guilt-innocence phase of capital murder trial, waived his Fifth Amendment privilege as to testimony by prosecution mental health experts on issue of future dangerousness in punishment phase of trial. Affirmed. Duncan, J., concurred in results. Onion, P.J., filed dissenting opinion in which Clinton, and Teague, JJ., joined. Teague, J., filed dissenting and concurring opinion.

McCORMICK, Judge.

Appellant was convicted of the capital murder. The jury assessed his punishment at death.

Shortly after midnight on May 18, 1978, Austin police officer Ralph Ablanedo, was on duty. At 12:41 a.m. Polly Bittick, the police radio dispatcher on duty, received a call from Ablanedo requesting a check through the National Criminal Information center (NCIC) on a person named Sheila Margaret Meinert, to determine if she was wanted for any offense. Ablanedo stated that he was in the 900 block of Live Oak Street. He also gave a vehicle identification number (VIN), and asked for a computer check to determine if the vehicle bearing that number was stolen. Bittick called back to advise that the vehicle inquiry was still pending, and that Meinert was not wanted by local authorities. At 12:46 a.m., Ablanedo radioed a request for a check on David Lee Powell, the appellant. Bittick's computer check showed a “possible wanted” on Powell, and she dispatched officer Bruce Mills to assist Ablanedo. This she stated was normal procedure when a computer check determined that a person was a “possible wanted.” Ablanedo called back to ask what Bittick had on appellant, and she told him, “... a possible misdemeanor theft.” Shortly thereafter, Bittick heard something like a scream over the radio, and then the voice of Mills calling for more patrol units. Mills then advised that he needed an ambulance, and stated there was an officer “down.” Mills stated that there was a red Mustang involved, going eastbound, and that the occupants were armed.

Other witnesses who resided in the 900 block of Live Oak Street described seeing a red Mustang automobile stopped in that block, with a police car behind it. The police car had its flashing lights on. A police officer and a female were seen standing between the two cars. Then there was the sound of gunshots, and the Mustang drove rapidly away. Appellant was identified as having been sitting in the back seat of the Mustang as the shots were fired, with another person sitting in the driver's seat. The Mustang stopped further up the street, and appellant moved to the front passenger side.

Officer Joe Villegas heard the radio description of the red Mustang, and concluded that a particular apartment complex nearby on Oltorf Street would be a likely hiding place. Checking the parking lot of the complex with his spotlight, Villegas saw a red Mustang with two occupants. As he pulled into the parking lot, he was met with a hail of automatic weapon fire coming from the right rear of the Mustang. He stopped, jumped out of his car, and returned the fire. Shortly thereafter, he saw a man running in a crouched position from the Mustang, south toward Travis High School. The man turned back and looked at Villegas from a distance of 15 or 20 yards, and Villegas later identified the man as appellant. Appellant disappeared around the corner of the high school.

Sergeant Darrell Gambrell joined Villegas during the firing at the apartment complex and saw a person get out of the Mustang and lie down next to it as the other person was running toward the high school. Gambrell and Officer Tommy Foree reached the person lying down, handcuffed her and searched her for weapons. The person was Sheila Meinert, appellant's companion. Inside the Mustang, the officers found an AK-47 automatic rifle, which was still hot to the touch from recently having been fired. It was later shown that Ablanedo had been shot with a Chinese version of a Russian AK-47 automatic rifle.

Officer Bruce Boardman came upon the apartment complex as the firing was going on. He saw a person with long hair come up and make a throwing motion toward Officer Villegas and those with him. An unexploded hand grenade was later found about ten feet from Villegas' patrol car. The safety pin had been removed. An officer found a pin similar to the type used in such grenades lying on the ground approximately three feet from the passenger door of the Mustang. At dawn appellant was found under a bush at Travis High School by a school patrolman. He offered no resistance.

After the State rested, appellant raised the defense of insanity at the time of the offense. See V.T.C.A., Penal Code, Section 8.01. His evidence on this issue came chiefly from Dr. Emanuel Tenay, a psychiatrist. Dr. Tenay testified that he had conducted lengthy interviews with appellant, members of his family, and his friends and acquaintances, and had reviewed a sizeable amount of appellant's personal writings. In Tenay's opinion, appellant had been insane on May 18, 1978, at the time officer Ablanedo was shot and killed. He believed that on that occasion appellant was suffering from paranoid schizophrenia, a form of psychosis. Dr. Tenay believed that this condition was largely the result of prolonged use of psychoactive drugs such as amphetamine and methamphetamine. There was other evidence that appellant had been heavily involved in the sale and perhaps manufacture of amphetamines, or “speed.”

The State sought to rebut this defensive theory through the testimony of Dr. Richard Coons, a psychiatrist, and Dr. George Parker, a psychologist. Dr. Coons met with and examined appellant on four occasions: on May 18, 1978, some 12 hours after the shooting, and again on May 23, May 29 and June 4, 1978. The first meeting occurred pursuant to an order signed by the trial court on the morning of the shooting. This order provided that appellant undergo examination and testing by Dr. Coons and a practicing psychologist of his choice to determine appellant's competency to stand trial and sanity at the time of the alleged offense. This order was made upon the motion of the State. Dr. Coons testified that based on his several examinations of appellant, there was no indication that appellant had been insane on May 18, 1978. He specifically disclaimed having observed any evidence that appellant was suffering from paranoid schizophrenia.

Dr. George Parker, a clinical psychologist practicing in Austin, testified that he had met with appellant on June 25 and July 2, 1978, at the Travis County jail. Each meeting lasted two to two and a half hours. He administered several standardized psychological tests to appellant, to determine intelligence, to detect the presence of any organic neurological disorders, and to examine personality functions. He was able to detect no organic difficulties. He found appellant to be very intelligent and articulate, with an IQ of 128. He characterized appellant's personality as impulsive, high-energy, rebellious, non-conforming, immature and somewhat egocentric. He stated the opinion that on May 18, 1978, appellant had been sane under Texas law, and that the testing showed no indication of paranoid schizophrenia. The jury's verdict at the guilt stage of the trial obviously indicates that it found the State's evidence more persuasive on the insanity issue.

At the penalty stage of the trial the State put on evidence that in January 1978, after having been evicted from an apartment for nonpayment of rent and having had the personal property therein impounded in December of 1977 by the landlord, George Sandlin, appellant had broken into Sandlin's storage facility to remove his belongings. Lee Ramos, a maintenance employee who was driving a Sandlin truck, happened upon this apparent burglary and stopped his truck. Appellant advanced upon him with a knife, and when Ramos fled in his truck, appellant chased him all the way home and then tried to get him to come outside. Ramos declined.

Also admitted as punishment evidence was testimony that a search of appellant's house the day after the shooting revealed a hand grenade, two cannisters of ether, a box of .45 caliber ammunition, a box of 7.62 mm Russian ammunition, and a set of die used in processing ammunition for an AK-47 Russian automatic rifle. Also found in the kitchen and seized were various beakers, chemicals and paraphernalia. A photograph of these items as they appeared in the kitchen was admitted into evidence. The police conducting the search also seized three small vials containing methamphetamine, with a total weight of approximately one gram.

Drs. Coon and Parker were called by the State and permitted, over objection, to testify on the issue of future dangerousness based on their examinations, interviews and testings of appellant. Both testified that in their opinion there was a “high” probability appellant would commit future acts of violence that would constitute a continuing threat to society.

Appellant called Ronnie Earle, the Travis County district attorney, who testified that appellant through his counsel had volunteered the information that there was a hand grenade in his house. Edith Roberts, one of appellant's counsel, also testified to the voluntary surrender of the grenade.

In his first point of error appellant complains that prospective juror Catherine Simmons was improperly excused for cause in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). Since appellant failed to object to the exclusion for cause of prospective juror Simmons, error, if any, has been waived. Modden v. State, 721 S.W.2d 859 (Tex.Cr.App.1986); Mann v. State, 718 S.W.2d 741 (Tex.Cr.App.1986); Stewart v. State, 686 S.W.2d 118 (Tex.Cr.App.1984).

In his second point of error appellant contends that Dr. Coons and Dr. Parker were improperly permitted by the court, over objection, to testify for the State at the penalty stage of the trial and to express their opinion on the issue of future dangerousness. Appellant relies upon Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) and Battie v. Estelle, 655 F.2d 692 (5th Cir.1981).

The Supreme Court, in Estelle v. Smith, supra, speaking through Chief Justice Burger, held that where prior to the in-custody psychiatric examination ordered by the court to determine the defendant's competency to stand trial the defendant had not been warned that he had the right to remain silent, and that any statement made could be used against him at the sentencing proceeding, admission at the penalty stage of a capital felony trial of a psychiatrist's damaging testimony on the crucial issue of future dangerousness violated the Fifth amendment privilege against compelled self-incrimination because of a lack of appraisal of rights and a knowing waiver thereof, the death penalty imposed could not stand.

The Court further held that the Sixth Amendment's right to counsel was violated where defense counsel was not notified in advance that the psychiatric examination would encompass the issue of future dangerousness and there was no affirmative waiver of the right to counsel.

In Estelle, the Dallas County district judge, on his own motion, appointed Dr. James Grigson to examine the defendant on the issue of his competency to stand trial. Article 46.02, V.A.C.C.P. Dr. Grigson examined the defendant without giving any warnings regarding his Fifth Amendment privilege against self-incrimination and did not notify the defense counsel that the psychiatric examination would encompass the issue of the defendant's future dangerousness, nor was the defendant accorded the assistance of counsel in determining whether to submit to such examination, etc. After the examination, Dr. Grigson reported to the court that Smith was competent to stand trial. The case went to trial with no issue being raised as to the defendant's competency to stand trial or as to the defensive issue of insanity at the time of the alleged offense. After Smith was convicted at the guilt stage of the bifurcated trial of the capital murder, Dr. Grigson was called by the State at the penalty stage of the trial to testify that, based upon his examination, he considered the defendant Smith a severe sociopath who would commit violent acts in the future “if given the opportunity to do so.” The jury subsequently returned affirmative answers to the special issues submitted under Article 37.071(b), V.A.C.C.P., and the trial court assessed the death penalty.

In the instant case appellant was taken before a magistrate on the day of his arrest and warned of the accusation against him. A complaint was filed five days later on May 23, 1978, and the first indictment was presented on the same date. A second indictment was returned on June 29, 1978. Shortly after appellant's apprehension on May 18, 1978, Steve Edwards, assistant district attorney, filed a motion requesting the court to order a psychiatric examination, claiming he had information which raised questions of the appellant Powell's mental competency to stand trial and his sanity at the time of the commission of the offense. The same day the trial court ordered a psychiatric examination of appellant to be made by Dr. Richard Coons and a psychologist of his choice. As noted above, this examination was for the purpose of determining both appellant's competency to stand trial and his sanity at the time of the offense. On May 18, 1978, one of appellant's counsel, Edith Roberts, was appointed. On May 23 and 24, 1978, Roberts had telephone conversations with Dr. Coons who obtained her permission for Dr. Parker to do some psychological testing of appellant. The record reflects that at no point in time did Coons or Parker inform appellant or his attorneys that they were asked to or had examined appellant on the issue of future dangerousness. Nor did Coons or Parker give appellant, who was in custody, Miranda warnings.

At first glance, this case seems to be ruled by the Supreme Court's decision in Estelle. However, a thorough review of the record and a careful reading of both Estelle and Battie bring us to the conclusion that the instant case is distinguishable and is a case of first impression. The distinguishing factor is that in the instant case appellant argued the affirmative defense of insanity during the guilt-innocence phase of the trial through the testimony of Dr. Tenay.

Language in Battie v. Estelle, 655 F.2d 692 (5th Cir.1981), seems to suggest that once a defendant introduces testimony on the issue of insanity at the guilt-innocence phase of the trial, he in fact waives his Fifth and Sixth Amendment rights implicated by psychiatric testimony not only at the guilt-innocence phase of the trial but also at the punishment phase of the trial. “The State also contends that petitioner waived his fifth amendment (sic) privilege by requesting a psychiatric examination to determine his competency to stand trial and his sanity at the time of the commission of the crime. This argument however confuses the use of psychiatric examinations by the defense or the State to determine a defendant's competency to stand trial with the use of a psychiatric examination by the defense or the State to ascertain the defendant's insanity at the time of the crime. Each use of psychiatric testimony raises questions different from those raised by the other and different doctrines have developed to account for these different problems.

“The use of a psychiatric or psychological examination to determine a defendant's competency to stand trial is a separate matter as far as the fifth amendment privilege is concerned and is distinct from the use of a psychiatric or psychological examination to determine the defendant's culpability or responsibility for the crimes charged against him. The State's use of the results of a competency examination does not infringe upon a defendant's fifth amendment privilege because it does not assist the State in proving any of the elements necessary to support the imposition of a criminal punishment under state law. See Estelle v. Smith, supra, 451 U.S. at 465, 101 S.Ct. at 1874-75. Had Dr. Patterson's examination been used only to determine petitioner's competency to stand trial ‘no Fifth Amendment issue would have arisen.’ Id. at 465, 101 S.Ct. at 1874; id. at 469, 101 S.Ct. at 1876. However, when the same type of examination is used to determine a defendant's culpability or responsibility for the crimes charged against him the fifth amendment privilege is involved because the use of a psychiatric or psychological examination in this context may assist the State in establishing the basis for imposition of a criminal punishment.” 655 F.2d at 700-701. (footnotes omitted) (emphasis applied) * * * The State contends however that a defendant's mere submission to a psychiatric or psychological examination constitutes a waiver of the fifth amendment privilege. But the waiver doctrine is inapplicable, as here, when the defendant does not introduce the testimony of mental health expert on the issue of a mental state relevant to the offense or a defense raised by the evidence in the case. Accordingly, a defendant can invoke the protection of the privilege when he does not introduce mental health expert testimony. Submitting to a psychiatric or psychological examination does not itself constitute a waiver of the fifth amendment's protection.” 655 F.2d at 702.

In rejecting the State's contention regarding waiver by virtue of requesting a competency hearing, the Fifth Circuit implicitly endorsed the concept of waiver by arguing the affirmative defense of insanity. Thus once the defendant has argued the affirmative defense of insanity by use of testimony from a mental health expert, the Fifth Amendment privilege accompanying any psychiatric testimony has been waived. Since in a capital murder case in Texas the information testified to by the mental health experts goes to assist the State in proving up one of the elements necessary to support the imposition of capital punishment under state law-specifically, the issue of future dangerousness-under Battie, the appellant, in presenting such an insanity defense has waived his Fifth Amendment privilege.

Furthermore, in addition to waiving the privilege by introducing psychiatric testimony on the issue of insanity at the guilt-innocence phase of the trial, our review of the record indicates that appellant waived the privilege by several of his actions at the punishment phase of the trial. First, during the preparation of the charge on punishment, appellant requested that the following instructions be included in the charge: “You are further instructed that you may consider any evidence you have heard during both phases of this case as the same may mitigate or impair David Lee Powell's ability to conform his acts to the law even though such mitigating facts may not be insanity as herein before defined to you.” * * * “You are further instructed that in answering the questions required of you in this charge, you may consider all of the evidence which you heard in the initial phase of this case relating to the Defendant's insanity; and whether or not the same proofs (sic) by a preponderance of the evidence, diminished capacity.” * * * “Do you find from a preponderance of the evidence that the intent or knowledge as those terms have heretofore been defined by the Court for you of David Lee Powell on May 18, 1978, was diminished by toxic psychosis, methane amphetamine-induced (sic)? Answer yes or no.”

Second, during closing argument at the punishment phase of the trial, appellant's attorney made the following argument: “But when we talk about psychiatric testimony, I just really wonder if you missed the whole thing. Dr. Coons [the State expert], four years experience; Dr. Tenay [the defense expert], twenty years experience; Dr. Coons, no medical history on the patient; Dr. Tenay, complete medical history; Dr. Coons, no forensic medicine in homicide (sic); maybe had heard a lecture and been around a little but no courses as such; Dr. Tenay, the leading authority in the United States on forensic medicine on homocide (sic).” [material in brackets added]

Clearly, the defense wished the jury to consider the psychiatric testimony introduced by the appellant at the guilt-innocence phase of the trial and compare it with the psychiatric and psychological testimony elicited from the State's experts at both the guilt-innocence phase of the trial and the punishment phase of the trial. It has long been the rule that in answering the special issues under Article 37.071, V.A.C.C.P., including the issue of future dangerousness, the jury may consider all of the properly admitted evidence at the first or guilt stage of the bifurcated trial, including the testimony of appellant's own psychiatrist on the issue of insanity as a defense. Russell v. State, 665 S.W.2d 771 (Tex.Cr.App.1983); Garcia v. State, 626 S.W.2d 46 (Tex.Cr.App.1981).

This is exactly the same situation this Court found in the case of Penry v. State, 691 S.W.2d 636 (Tex.Cr.App.1985). In Penry, the defendant raised the issue of insanity at the guilt-innocence phase and reintroduced all of the guilt-innocence testimony at the punishment stage. Judge Tom Davis wrote the following: “It is clear from the jury argument of appellant's attorneys that they wanted the jury to reconsider all of the testimony relevant to the insanity defense at the punishment stage, and wanted the jury to consider it as to ‘each of those special issues.’ It is also clear from a reading of the record that appellant's jury arguments and reintroduction of guilt-innocence phase testimony were not a response to the testimony of Peebles and Vogtsberger [the State's experts]. Rather, throughout the entire trial, appellant relied heavily on his history of mental instability. “Since appellant raised the issue of insanity at the guilt-innocence stage of the trial and at the punishment hearing with respect to all of the special issues, including future dangerousness, he effectively waived his Fifth and Sixth Amendment rights to complain about the future dangerousness testimony of Peebles and Vogtsberger, which testimony was based in part on psychiatric examinations of appellant during which insufficient warnings were given.” 691 S.W.2d at 652. [material in brackets added]

We find Judge Davis' reasoning to be applicable to the instant case. See also Griffin v. State, 665 S.W.2d 762 (Tex.Cr.App.1983). Compare Clark v. State, 627 S.W.2d 693 (Tex.Cr.App.1981) (where the Court found no waiver of Estelle error even though the defendant had introduced psychiatric testimony at the punishment stage because such evidence was introduced in order “to meet, destroy or explain” the erroneously admitted psychiatric evidence).

Finally, we conclude that even if there was error in admitting the testimony of Drs. Coons and Parker, the error was harmless. True, Dr. Coon and Dr. Parker did give their opinions that appellant would be violent in the future. But the jury had before them the details of the brutal killing of Officer Ablanado plus the attempted killing of other officers on the scene. They knew that appellant had armed himself not only with an AK-47 automatic rifle and a .45 automatic pistol but also a hand grenade which he did not hesitate in throwing at his pursuers. Other evidence introduced at the punishment stage of the trial showed that in January 1978, after having been evicted from an apartment for nonpayment of rent and having had his personal property contained in the apartment impounded, appellant broke into his landlord's storage facility to remove his belongings. Upon discovery by his landlord's maintenance man, appellant advanced upon the maintenance man with a knife and pursued the man all the way to his home. The evidence also showed that a search of appellant's house after the instant offense revealed a variety of ammunition, another grenade and several canisters of ether, which were described by an agent of the Bureau of Alcohol, Tobacco and Firearms as being “of an explosive nature.”

We must conclude, as we did in Satterwhite v. State, 726 S.W.2d 81 (Tex.Cr.App.1986), that: “the properly admitted evidence was such that the minds of an average jury would have found the State's case sufficient on the issue of the ‘probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society’ even if [Dr. Coon's and Dr. Parker's] testimony had not been admitted. The admission of the testimony was harmless error beyond a reasonable doubt. Sanne v. State, 609 S.W.2d 762 (Tex.Cr.App.1980).” 726 S.W.2d at 93. [material in brackets supplied] This point of error is overruled.

In his third point of error, appellant complains that the admission of the testimony of Dr. Coons and Dr. Parker at the penalty stage of the trial undermined the reliability of the fact-finding process. A review of the record reveals that there was no trial objection on this basis and thus nothing is presented for review. Thomas v. State, 701 S.W.2d 653 (Tex.Cr.App.1985).

Appellant next complains that Article 37.071, V.A.C.C.P., is unconstitutional because it contains no provisions for directing and instructing the jury's consideration of mitigating circumstances at the penalty stage of the trial, and is heavily weighed in favor of the prosecution by focusing the jury's consideration on aggravating circumstances. This contention has been addressed and overruled by this Court on several other occasions. Anderson v. State, 701 S.W.2d 868 (Tex.Cr.App.1985); Penry v. State, 691 S.W.2d 636 (Tex.Cr.App.1985); Stewart v. State, 686 S.W.2d 118 (Tex.Cr.App.1984). Appellant's brief contains nothing to persuade us that our prior rulings in this area have been wrong. This point of error is overruled.

Finally, appellant contends that he was denied fundamental fairness, due process and equal protection of the law in the admission of an unadjudicated extraneous offense at the penalty stage of his capital murder trial. Specifically, the defense complains about the attempted assault made by appellant upon Ramos, the maintenance man. Initially, we note that no objection was made to the admission of this evidence at trial and thus nothing is presented for review. Crocker v. State, 573 S.W.2d 190 (Tex.Cr.App.1978).

However, even if an objection had been made at trial, we would still be compelled to overrule this point of error. This argument has been considered and rejected in a number of cases. Hogue v. State, 711 S.W.2d 9 (Tex.Cr.App.1986); Morin v. State, 682 S.W.2d 265 (Tex.Cr.App.1983); Williams v. State, 622 S.W.2d 116 (Tex.Cr.App.1981). Appellant's fifth point of error is overruled.

Having found no reversible error, the judgment of the trial court is affirmed. DUNCAN, J., concurs in the result.

ONION, Presiding Judge, dissenting.

In his second point of error FN1 appellant contends that Dr. Coons and Dr. Parker were improperly permitted by the court, over objection, to testify for the State at the penalty stage of the trial and to express their opinion on the issue of future dangerousness. Appellant relies upon Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), a Texas case.

FN1. In his second and third points (nee grounds) of error appellant complains of the admission of the testimony of Drs. Coons and Parker at the penalty stage of the trial. His third point complains that the admission of such testimony undermined the reliability of the fact-finding process. There was no trial objection on this basis and nothing is presented for review on appellant's third point of error. I do not believe this Court has any choice but to sustain appellant's second point of error and reverse the conviction.

The Supreme Court, in Estelle v. Smith, supra, speaking through Chief Justice Burger, held that where prior to the in-custody psychiatric examination ordered by the court to determine the defendant's competency to stand trial the defendant had not been warned that he had the right to remain silent, and that any statement made could be used against him at the sentencing proceeding, admission at the penalty stage of a capital felony trial of a psychiatrist's damaging testimony on the crucial issue of future dangerousness violated the Fifth Amendment privilege against compelled self-incrimination because of a lack of appraisal of rights and a knowing waiver thereof, the death penalty imposed could not stand.

The Court further held that the Sixth Amendment's right to counsel was violated where defense counsel was not notified in advance that the psychiatric examination would encompass the issue of future dangerousness and there was no affirmative waiver of the right to counsel. It must be remembered that both the Fifth and Sixth Amendments are applicable to the states by virtue of the Fourteenth Amendment. See Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Pointer v. State, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).

In Estelle v. Smith, supra, the Dallas County district judge, on his own motion, appointed Dr. James Grigson to examine the defendant on the issue of his competency to stand trial. See Article 46.02, V.A.C.C.P. Dr. Grigson examined the defendant without giving any warnings regarding his Fifth Amendment privilege against self-incrimination and did not notify the defense counsel that the psychiatric examination would encompass the issue of the defendant's future dangerousness, nor was the defendant accorded the assistance of counsel in determining whether to submit to such examination, etc.

After the examination, Dr. Grigson reported to the court that Smith (the defendant) was competent to stand trial. The case went to trial with no issue being raised as to the defendant's competency to stand trial or as to the defensive issue of insanity at the time of the alleged offense. After Smith was convicted at the guilt stage of the bifurcated trial of the capital murder, Dr. Grigson was called by the State at the penalty stage of the trial to testify that, based upon his examination, he considered the defendant Smith a severe sociopath who would commit violent acts in the future “if given the opportunity to do so.” The jury subsequently returned affirmative answers to the special issues submitted under Article 37.071(b), V.A.C.C.P., and the trial court assessed the death penalty on appeal. The conviction was affirmed by this Court in Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976).

Having exhausted his state remedies, Smith sought federal habeas corpus relief and prevailed on the contentions identical to those raised at trial by this appellant in the instant cause. Smith v. Estelle, 445 F.Supp. 647 (N.D.Texas 1977). The Court of Appeals for the Fifth Circuit affirmed though modifying the decision. Smith v. Estelle, 602 F.2d 694 (5th Cir.1979). Subsequently the United States Supreme Court affirmed the Fifth Circuit opinion as earlier noted.

In affirming the lower court in the said Smith case, the Supreme Court noted that Smith's future dangerousness was a critical issue at the penalty stage of the capital murder trial, and one upon which the State had the burden of proof beyond a reasonable doubt. [See Article 37.071(b) and (c), V.A.C.C.P.]; that the State, to meet its burden, used Smith's own statements unwittingly made without an awareness that he was assisting the State's efforts to obtain the death penalty.FN2 FN2. The statements were made to the psychiatrist in what was supposedly a pretrial examination to determine competency to stand trial. Thus, the United States Supreme Court held that both the Fifth and Sixth Amendments of the United States Constitution are violated by a doctor's testimony on future dangerousness at the penalty stage of the trial when the opinion is based on questioning of a defendant in custody who is represented by counsel and the questioning is conducted without prior warning on the Fifth Amendment privilege and without opportunity for advice of counsel.FN3

FN3. In Smith the Supreme Court wrote: “In Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966), the Court acknowledged that ‘the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.’ Miranda held that ‘the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.’ Id., at 444, 86 S.Ct., at 1612. Thus, absent other fully effective procedures, a person in custody must receive certain warnings before any official interrogation, including that he has a ‘right to remain silent’ and that ‘anything said can and will be used against the individual in court.’ Id., at 467-469, 86 S.Ct., at 1624-1625. The purpose of these admonitions is to combat what the Court saw as ‘inherently compelling pressures' at work on the person and to provide him with an awareness of the Fifth Amendment privilege and the consequences of foregoing it, which is the prerequisite for ‘an intelligent decision as to its exercise.’ Ibid.

“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. During the psychiatric evaluation, respondent assuredly was ‘faced with a phase of the adversary system’ and was ‘not in the presence of [a] person[ ] acting solely in his interest.” Id., at 469, 86 S.Ct. at 1625. Yet he was given no indication that the compulsory examination would be used to gather evidence necessary to decide whether, if convicted, he should be sentenced to death. He was not informed that, accordingly, he had a constitutional right not to answer the questions put to him.

“The Fifth Amendment privilege is ‘as broad as the mischief against which it seeks to guard,’ Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110 (1892), and the privilege is fulfilled only when a criminal defendant is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.’ Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493-1494, 12 L.Ed.2d 653 (1964). We agree with the Court of Appeals that respondent's Fifth Amendment rights were violated by the admission of Dr. Grigson's testimony at the penalty phase.” “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. If, upon being adequately warned, respondent had indicated that he would not answer Dr. Grigson's questions, the validly ordered competency examination nevertheless could have proceeded upon the condition that the results would be applied solely for that purpose. In such circumstances, the proper conduct and use of competency and sanity examinations are not frustrated, but the State must make its case on future dangerousness in some other way. “ ‘Volunteered statements ... are not barred by the Fifth Amendment,’ but under Miranda v. Arizona, supra, we must conclude that, when faced while in custody with a court-ordered psychiatric inquiry, respondent's statements of Dr. Grigson were not ‘given freely and voluntarily without any compelling influences' and, as such, could be used as the State did at the penalty phase only if respondent had been apprised of his rights and had knowingly decided to waive them. Id., at 478, 86 S.Ct., at 1630. These safeguards of the Fifth Amendment privilege were not afforded respondent and, thus, his death sentence cannot stand.” (Footnotes omitted.)

In discussing the Sixth Amendment contention, the Supreme Court in Smith wrote: “When respondent was examined by Dr. Grigson, he already had been indicated (sic) and an attorney had been appointed to represent him. The Court of Appeals concluded that he had a Sixth Amendment right to the assistance of counsel before submitted to the pretrial psychiatric interview. 602 F.2d, at 708-709. We agree. “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 defense.’ 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, 60, 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, 1882, 32 L.Ed.2d 411 (1972) (plurality opinion); Moore v. Illinois, 434 U.S. 220, 226-229, 98 S.Ct. 458, 463-465, 54 L.Ed.2d 424 (1977). And in United States v. Wade, 388 U.S. 218, 226-227, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967), the Court explained: “ ‘It is central to [the Sixth Amendment] principle that in addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial.’ (Footnote omitted.) See United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). See also White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961).

“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, 2002-2004, 26 L.Ed.2d 387 (1970) (plurality opinion); Powell v. Alabama, supra, 287 U.S., at 57, 53 S.Ct., at 60. 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. “Because ‘[a] layman may not be aware of the precise scope, the nuances, and the boundaries of his Fifth Amendment privilege,’ the assertion of that right ‘often depends upon legal advise from someone who is trained and skilled in the subject matter.’ Maness v. Meyers, 419 U.S. 449, 466, 95 S.Ct. 584, 595, 42 L.Ed.2d 574 (1975). As the Court of Appeals observed, the decision to be made regarding the proposed psychiatric evaluation is ‘literally a life or death matter’ and is ‘difficult ... even for an attorney’ because it requires ‘a knowledge of what other evidence is available, of the particular psychiatrist's biases and predilections, [and] of possible alternative strategies at the sentencing hearing.’ 602 F.2d, at 708. It follows logically from our precedents that a defendant should not be forced to resolve such an important issue without ‘the guiding hand of counsel.’ Powell v. Alabama, supra, 287 U.S., at 69, 53 S.Ct., at 64. “Therefore, in addition to Fifth Amendment considerations, the death penalty was improperly imposed on respondent because the psychiatric examination on which Dr. Grigson testified at the penalty phase proceeded in violation of respondent's Sixth Amendment right to the assistance of counsel.” (Footnotes omitted.)

In the instant case appellant was taken before a magistrate on May 18, 1978 and warned of the accusation against him as provided by Article 15.17, V.A.C.C.P. A complaint was filed on May 23, 1978, and the first indictment was presented on the same date. A second indictment was returned on June 29, 1978. Shortly after appellant's apprehension on May 18, 1978, Steve Edwards, assistant district attorney, filed a motion requesting the court to order a psychiatric examination, claiming he had information which raised questions of the appellant Powell's mental competency to stand trial and his sanity at the time of the commission of the offense. The same day the trial court ordered a psychiatric examination of appellant to be made by Dr. Richard Coons and a psychologist of his choice to determine both appellant's competency to stand trial and his sanity at the time of the offense.

Dr. Coons examined the appellant on May 18th, 23rd and 29th and June 4, 1978. Dr. George Parker, a psychologist, tested the appellant on June 25th and July 2, 1978. One of the appellant's counsel, Edith Roberts, was appointed on May 18, 1978. On May 23 and 24, 1978, she had telephone conversations with Dr. Coons who obtained her permission for Dr. Parker to do some psychological testing. Neither Coons nor Parker informed appellant Powell nor any of his attorneys (Roberts, J.P. Darrouzet and Curt Beckcom) that they were asked to or had examined appellant on the issue of future dangerousness. And Powell and his attorneys did not request a psychiatric examination for that purpose nor indicate they intended to offer psychiatric evidence at the penalty stage of the trial.

On June 22, 1978 the appellant filed notice that he was presently incompetent to stand trial and that he would offer at trial “evidence of the insanity defense.” Drs. Coon and Parker were appointed by the court on June 28, 1978 to make examinations. Dr. Coons made two reports dated July 15, 1978, addressed to the district attorney, finding appellant competent and sane. The issue of present incompetency was abandoned by the appellant on July 10, 1978. He did present the defense of insanity by the testimony of a Dr. Tenay, a psychiatrist. The State countered with the testimony of Drs. Coons and Parker that the appellant was sane when the alleged offense was committed.

At the penalty stage of the trial the State offered the testimony of Drs. Coons and Parker, over objection, as to the issue of future dangerousness. Based on their examinations, interviews and testing, they expressed the opinion there was a probability that the appellant in the future would commit criminal acts of violence that would constitute a continuing threat to society.

The record does not reflect that either Dr. Coons or Dr. Parker gave appellant, who was in custody, Miranda warnings or informed him that the examinations were also for the purpose of determining his future dangerousness and whether he presented a continuing threat to society. And his attorneys were not so informed that the examinations and testings were for this additional purpose. Except for Dr. Coons' interview with appellant on May 18, 1978, appellant, as in Estelle v. Smith, supra, was already under indictment when the examinations and testing took place. Thus his right to assistance of counsel had attached. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). While the attachment of that right does not encompass the right to have counsel actually present during the examination, Estelle v. Smith, supra, it does mean that appellant's counsel should have been informed that the examinations and testings would encompass the issue of future dangerousness. Additionally, the attachment of the right to counsel meant that appellant could have consulted with his attorney prior to the examinations and testings. There is nothing to indicate that appellant gave a knowing, intelligent, and voluntary waiver of his right to counsel, and a waiver will not be presumed from a silent record.

Thus there would appear to be violations of both appellant's Fifth and Sixth Amendment rights at the penalty stage of the instant capital murder trial. FN4. It should be here noted that the appellant did not offer psychiatric or psychological testimony at the penalty stage. If he had, a different situation may have been presented. Estelle v. Smith, supra, 101 S.Ct. at 1878. First, it should be considered whether appellant's objections, while timely, were sufficient. It is observed that prior to the testimony of Drs. Coons and Parker at the penalty stage of the trial appellant's three court-appointed counsel testified they had not been notified by the doctors or others that appellant was to be or had been examined on the question of future dangerousness. The objection was then made to the doctors' testimony. There was no request by appellant for either a psychiatric or psychological examination on the future dangerousness issue nor was there any showing appellant intended to use such testimony at the penalty stage of the trial.

The court overruled the objection on the basis of Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976), and “ Chambers v. State.” [568 S.W.2d 313 (Tex.Cr.App.1978); now see Ex parte Chambers, 688 S.W.2d 483 (Tex.Cr.App.1984) ] Appellant's counsel, in connection with the objection and the ruling, however, called the court's attention to Smith v. Estelle, 445 F.Supp. 647, wherein the federal district court set aside the judgment in the Smith case, relied upon by the trial court, upon violations of the Fifth and Sixth Amendments, and which was a forerunner of Estelle v. Smith, supra. Nevertheless, the court permitted Drs. Coons and Parker to testify at the penalty stage.FN5

FN5. It would be difficult, except in hindsight, to fault the trial judge for his ruling at the time of trial. Relying upon Stultz v. State, 500 S.W.2d 853 (Tex.Cr.App.1973), and Patterson v. State, 509 S.W.2d 857 (Tex.Cr.App.1974), this Court in Livingston held that there was no violation of the Fifth and Sixth Amendments when a psychiatrist appointed to determine the defendant's competency to stand trial was permitted to testify at the penalty stage of a capital murder trial as to the question of the defendant's future dangerousness. To the same effect are Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976); Gholson v. State, 542 S.W.2d 395 (Tex.Cr.App.1976), cert. den., 432 U.S. 911, 97 S.Ct. 2960, 53 L.Ed.2d 1084 (1977); Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976); Shippy v. State, 556 S.W.2d 246 (Tex.Cr.App.1977); cert. den., 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977); Von Byrd v. State, 569 S.W.2d 883, 897 (Tex.Cr.App.1978). These cases were all in place when appellant's case was tried in September 1978. And after the date of appellant's trial this Court in Muniz v. State, 573 S.W.2d 792 (Tex.Cr.App.1978), refused to follow the federal district court ruling in Smith v. Estelle, 445 F.Supp. 647 (N.D.Tex.1977), holding to the contrary as a matter of federal constitutional law. See also Wilder v. State, 583 S.W.2d 349 (Tex.Cr.App.1979). The United States Supreme Court is the ultimate expositor of the United States Constitution, and we are constrained to follow its interpretation of the Constitution.

If it can be argued that appellant's objection was not sufficient, I observe that the Supreme Court in Estelle v. Smith, supra, in footnote No. 12, said: “For the reasons stated by the Court of Appeals, we reject the State's argument that respondent waived his Fifth Amendment claim by failing to make a timely, specific objection to Dr. Grigson's testimony at trial. See 602 F.2d at 702, n. 19. In addition, we note that the State did not present the waiver argument in its petition for certiorari. See this Court's rule 40(1)(d)(2) (1970).”

The Fifth Circuit Court of Appeals stated, in the cited footnote 19, in part as follows: “The state asserts that Smith forfeited his fifth and sixth amendment claims by not raising them when he objected to Dr. Grigson's testimony at the sentencing phase. There are three sufficient answers. First ... Second, Texas courts interpreted the fifth and sixth amendments to permit testimony like Dr. Grigson's to be admitted, see, e.g., Livingston v. State, 542 S.W.2d 655, 661-662 (Tex.Cr.App.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977); we have held that the apparent futility of objecting to an alleged constitutional violation excuses a failure to object. [citation omitted]. Third....”

I would reject any argument that appellant's contention on appeal should be overruled for lack of a timely and specific objection at trial. Further, the 1981 opinion of the Supreme Court in Estelle v. Smith, supra, has been held to be retroactive, Battie v. Estelle, 655 F.2d 692 (5th Cir.1981); FN6 White v. Estelle, 720 F.2d 415 (5th Cir.1983); Muniz v. Procunier, 760 F.2d 588 (5th Cir.1985), cert. den., McCotter v. Muniz, 474 U.S. 934, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985); Jones v. McCotter, 767 F.2d 101 (5th Cir.1985), and this Court has applied the decision retroactively as to both Fifth and Sixth Amendment violations. See, e.g., Thompson v. State, 621 S.W.2d 624 (Tex.Cr.App.1981); Fields v. State, 627 S.W.2d 714 (Tex.Cr.App.1982); Ex parte Demouchette, 633 S.W.2d 879 (Tex.Cr.App.1982); Ex parte English, 642 S.W.2d 483 (Tex.Cr.App.1982); Ex parte Chambers, 688 S.W.2d 483 (Tex.Cr.App.1984); Ex parte White, 725 S.W.2d 262 (Tex.Cr.App.1987). And as some of the above cases indicate, this has been true even when the collateral attack is by post-conviction writ of habeas corpus.

FN6. Battie held that Smith established no new principles of federal constitutional law but merely applied the already fixed principles of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), to a new factual situation. Battie, at p. 1180. Battie, dealt with the retroactivity of the Fifth Amendment violation holding in Smith. Still further, it has been said, “[W]here a defect of constitutional magnitude has not been established at the time of the trial, the failure of counsel to object does not constitute waiver.” Ex parte Chambers, 688 S.W.2d, supra, at 486 (Campbell, J., concurring); Cuevas v. State, 641 S.W.2d 558, 563 (Tex.Cr.App.1982); Ex parte Sanders, 588 S.W.2d 383 (Tex.Cr.App.1979), and cases there cited. See also Ex parte Bravo, 702 S.W.2d 189 (Tex.Cr.App.1986). This is now a part of our state procedural default rule dealing with preservation of constitutional error.

If any thought is entertained of reconsidering the question of the retroactivity of Estelle v. Smith, supra, on the basis that Smith in fact was a “clear break” with past precedent and practice, that thought has been effectively foreclosed by the recent decision of the United States Supreme Court in Griffin v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649, 40 Cr.R. 3169 (1987). There it was held that a new constitutional rule for the conduct of criminal prosecutions applies retroactively to all cases, state or federal, pending or direct review or not yet final at the time of the new decision, even if the rule represents a “clear break” with past precedent or practice.

In Smith v. Estelle, supra, 101 S.Ct. at 1877, 1878, the Supreme Court stated: “Our holding based on the Fifth and Sixth Amendments will not prevent the State in capital cases from proving the defendant's future dangerousness as required by statute. A defendant may request or consent to a psychiatric examination concerning future dangerousness in the hope of escaping the death penalty. In addition, a different situation arises where a defendant intends to introduce psychiatric evidence at the penalty stage.” FN7. The Court then went on to point out that under the Texas capital murder scheme the jury's resolution of the future dangerousness issue is not confined to the province of psychiatric experts, and while not disapproving the use of psychiatric testimony the Court observed that the inquiry mandated by Texas law as to future dangerousness does not require resort to medical experts.” Id., 101 S.Ct. at 1878. See also Crawford v. State, 617 S.W.2d 925 (Tex.Cr.App.1980), cert. den. 452 U.S. 931, 101 S.Ct. 3067, 69 L.Ed.2d 431 (1981); reh. den. 453 U.S. 925, 101 S.Ct. 3160, 69 L.Ed.2d 1005 (1981); Williams v. State, 668 S.W.2d 692 (Tex.Cr.App.1983). In the instant case the appellant and his counsel had not consented to nor requested an examination on the issue of future dangerousness, had no notice that any examination would be used for that purpose, and did not offer any psychiatric or psychological testimony at the penalty stage of the trial nor indicated that they would do so.

Thus the opinion testimony of Drs. Coons and Parker offered by the State at the penalty stage of the trial was not made admissible because of any consent on the part of appellant to any examination for future dangerousness or because of the use by the appellant of psychiatric or psychological testimony at the penalty stage of the trial. Smith is not inapplicable for those purposes.

Further, the testimony of Drs. Coons and Parker cannot be classified as hypothetical opinion testimony of a psychiatrist or psychologist, who has not examined the defendant and who is asked to assume certain hypothetical facts and to give his opinion based on his knowledge of research conducted within his field of expertise. Hypothetical testimony would have been admissible. Vanderbilt v. State, 629 S.W.2d 709 (Tex.Cr.App.1981); cert. den. 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169 (1982); Smith v. State, 683 S.W.2d 393 (Tex.Cr.App.1984); Holloway v. State, 691 S.W.2d 608 (Tex.Cr.App.1984). See also Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), reh. den. 464 U.S. 874, 104 S.Ct. 209, 78 L.Ed.2d 185. Cf., however, White v. Estelle, 720 F.2d 415, 417 (5th Cir.1983).

Since Drs. Coons' and Parker's testimony on future dangerousness was expressly based on their examinations of the appellant, their testimony is not that of hypothetical witnesses. Smith v. Estelle, supra, is not inapplicable for that reason.

Waiver

May it be said that Smith v. Estelle, supra, is not applicable, at least in part, because of appellant Powell's mere submission to the psychiatric and psychological examinations for the purposes of determining competency and insanity at the time of the commission of the alleged offense? Battie v. Estelle, 655 F.2d 692, 702 (5th Cir.1981), held that submitting to a psychiatric or psychological examination does not itself constitute a waiver of the Fifth Amendment's protection. Nor does the fact that the defense may have requested an examination foreclose a claim under Estelle v. Smith, supra. Booker v. Wainwright, 703 F.2d 1251, 1256 (11th Cir.1983); Cape v. Francis, 741 F.2d 1287, 1295 (footnote # 9) (11th Cir.1984). However, Battie, citing United States v. Cohen, 530 F.2d 43 (5th Cir.) cert. den. 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1976), approved the holding in Cohen and stated that “ the introduction by the defense of psychiatric testimony constituted a waiver of the defendant's fifth amendment privilege in the same manner as would the defendant's election to testify at trial.” Battie, 655 F.2d at 702. (Emphasis supplied.)

Here appellant raised the defense of insanity (at the time of the commission of the offense) and called his own psychiatrist to testify on his behalf at the guilt stage of the trial on the defensive issue upon which he had the burden of proof. Thus, under Battie, there was a waiver of appellant's Fifth Amendment privilege as to psychiatric testimony, at least at the guilt stage of the bifurcated trial. Under Battie does such waiver, without more, survive in the separate penalty stage of a capital murder trial? In Booker that very question was not decided because the defendant took the stand and testified at the “advisory sentencing proceedings,” and was cross-examined by the prosecutor apparently using information given to the psychiatrist without the constitutional safeguards of Estelle v. Smith, supra. The Booker Court stated: “Yet even assuming Booker's statements [to psychiatrist] would not have been admissible in the state's case, there is no constitutional prohibition against using the information for impeachment purposes. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).” In the instant case the appellant did not testify and did not offer psychiatric testimony at the penalty stage of the trial, so the survival of the waiver question must be answered.

In Brumfield v. State, 445 S.W.2d 732 (Tex.Cr.App.1969), this Court, interpreting our bifurcated trial system under Article 37.07, V.A.C.C.P., held that a defendant who waives his privilege against self-incrimination by testifying at the guilt stage of the trial may not be recalled at the penalty stage of the trial to assist the State in proving an issue upon which it has the burden of proof. Thus, the waiver at the guilt stage did not survive until the penalty stage. Brumfield has been adhered to since 1969. See, e.g., Brown v. State, 576 S.W.2d 36, 38 (Tex.Cr.App.1978) (footnote # 2); Stewart v. State, 666 S.W.2d 548, 549 (Tex.App.-Dallas 1984), PDR ref'd (1984).

I would conclude in the instant case that appellant's waiver of the privilege against self-incrimination at the guilt stage by offering psychiatric testimony on the defensive issue of insanity upon which he had the burden of proof did not survive and carry over to the penalty stage of a capital murder trial under Article 37.071, V.A.C.C.P., so that on the basis of such waiver the prosecution could call psychiatric and psychological witnesses on the issue of future dangerousness on which it had the burden of proof beyond a reasonable doubt where the appellant did not testify nor offer psychiatric testimony or otherwise waive his privilege against self-incrimination at that stage of the trial.

Harmless Error

As earlier noted, it was not shown Drs. Coons and Parker were instructed, ordered or requested to determine future dangerousness during their examinations of appellant. And it was not shown that the doctors made such pretrial determination on their own, but when called at the penalty stage they gave their opinion testimony on future dangerousness based on their examinations for other purposes. In Cape v. Francis, 741 F.2d 1287, 1297 (11th Cir.1984), the Court noted that both Estelle v. Smith, supra and Spivey v. Zant, 661 F.2d 464 (5th Cir.1981), cert. den. 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982) “illustrate the heightened level of scrutiny that must be given claims of sixth and fourteenth amendment violations arising from the introduction of psychiatric testimony. The cases cannot be read, however, as establishing an absolute rule which mandates reversal in any instance where psychiatric testimony exceeds the scope anticipated by defense counsel at the time of the examination.” (Emphasis supplied.)

The Court then wrote: “The essence of our focus must be whether the psychiatric examination proved to be “a critical stage” of the aggregate proceedings against the petitioner. Both Smith and Spivey make clear that such a determination turns upon the actual use of the testimony at trial. Such attention ultimately resolves the question ‘whether potential substantial prejudice to defendant's rights inheres in the ... confrontation and the ability of counsel to help avoid that prejudice.’ Coleman v. Alabama, 399 U.S. 1, 9, 90 S.Ct. 1999, 2003, 26 L.Ed.2d 387, 396 (1970), quoting Wade, 388 U.S. at 277, 87 S.Ct. at 1932, 18 L.Ed.2d at 1157. “In Smith, the testimony was critical to the State's burden of proving future dangerousness; in Spivey, the testimony was utilized to rebut the defendant's obviously decisive insanity defense. In each instance, then, there existed substantial prejudice. In the present case, however, no such prejudice-either actual or potential-is similarly manifest.”

In Cape the doctor's comment on Cape's sanity at the time of the murder did not address any issue essential to the jury's consideration, and by proving Cape's sanity the State proved a fact not necessary to its burden of proof. The Court held that in the absence of potential prejudice Cape was not deprived of any right at the “critical stage” of the proceedings against him and there was no violation of the Sixth and Fourteenth Amendments.

The facts in the instant case are readily distinguishable from those in Cape. The opinion testimony of Drs. Coons and Parker was critical to the State's burden of proving special issue number two (2) at the penalty stage of the trial-that of future dangerousness. It was the only opinion testimony offered at that stage on one of the very issues before the jury. Given the actual use of the testimony, the psychiatric and psychological examinations were shown to be “a critical stage” of the aggregate proceedings against the appellant with regard to his Sixth Amendment right to counsel. In my opinion harmless error discussion is of little aid to the State in the instant case.

In Satterwhite v. State, 726 S.W.2d 81 (Tex.Cr.App.1986), this Court found no Fifth Amendment violation in a capital murder case where the death penalty had been imposed, but concluded there was a Sixth Amendment violation under Estelle v. Smith, supra. Nevertheless, the Court found that the constitutional error was harmless error beyond a reasonable doubt given the circumstances of the particular case. There was no question that Dr. Grigson's testimony on future dangerousness at the penalty stage of Satterwhite was tainted by Sixth Amendment error. However, the same testimony, not shown to be tainted, was elicited from a psychologist, and there was evidence of four prior felony convictions, other unadjudicated extraneous offenses or incidents involving a shooting and attempted use of a loaded pistol against a police officer, testimony from eight (8) peace officers that the defendant's reputation for being a peaceful and law-abiding citizen was “bad,” as well as the testimony from the guilt stage of the trial which was before the jury. See Bravo v. State, 627 S.W.2d 152 (Tex.Cr.App.1983); O'Bryan v. State, 591 S.W.2d 464 (Tex.Cr.App.1979). In Satterwhite, this Court wrote: “We conclude that the properly admitted evidence was such that the minds of an average jury would have found the State's case sufficient on the issue of the ‘probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society’ even if Dr. Grigson's testimony had not been admitted. The admission of the testimony was harmless error beyond a reasonable doubt. Sanne v. State, 609 S.W.2d 762 (Tex.Cr.App.1980).”

In the instant case the opinion testimony of Drs. Coons and Parker was the only opinion testimony on the future dangerousness, and it was tainted by Sixth Amendment error. Unlike Satterwhite, there was no untainted opinion evidence on the same issue. It is true, of course, that in answering the special issues under Article 37.071, V.A.C.C.P., including the issue of future dangerousness, the jury may consider all of the admitted evidence at the first or guilt stage of the bifurcated trial. Garcia v. State, 626 S.W.2d 46 (Tex.Cr.App.1981), and cases there cited; Russell v. State, 598 S.W.2d 238, 254 (Tex.Cr.App.1980); Russell v. State, 665 S.W.2d 771, 781 (Tex.Cr.App.1983). And this, of course, would include the testimony of appellant's own psychiatrist on the issue of insanity as a defense. It has been said that the circumstances of the offense and the facts surrounding it may furnish greater probative evidence than any other evidence regarding the second special issue (future dangerousness) submitted at the penalty stage of a capital murder trial. Duffy v. State, 567 S.W.2d 197 (Tex.Cr.App.1978). See also Carter v. State, 717 S.W.2d 60 (Tex.Cr.App.1986); Fierro v. State, 706 S.W.2d 310, 319 (Tex.Cr.App.1986); Bush v. State, 697 S.W.2d 397, 399 (Tex.Cr.App.1985).

The test for harmless federal constitutional error is not whether a 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.” Chapman v. California, 386 U.S. 18, 87 S.Ct. 827, 17 L.Ed.2d 705 (1967). See also Jordan v. State, 576 S.W.2d 825 (Tex.Cr.App.1978); Esquivel v. State, 595 S.W.2d 516 (Tex.Cr.App.1980); Clemons v. State, 605 S.W.2d 567 (Tex.Cr.App.1980). In Saylor v. State, 660 S.W.2d 822 (Tex.Cr.App.1983), this Court wrote: “To apply this test [set out in Chapman ], this Court has found it necessary to consider not only the evidence adduced at the guilt-innocence stage, but also the punishment stage. Garrett v. State, 632 S.W.2d 350 (Tex.Cr.App.1982); Clemons v. State, 605 S.W.2d 567, 571 (Tex.Cr.App.1980); Jordan v. State, 576 S.W.2d 825 (Tex.Cr.App.1978).”

The question cannot be answered by merely considering the error in isolation. Harryman v. Estelle, 616 F.2d 870, 876 (5th Cir.) (en banc), cert. den. 449 U.S. 860, 101 S.Ct. 161, 66 L.Ed.2d 76 (1980). The facts and circumstances of each individual case must be considered. Bird v. State, 692 S.W.2d 65 (Tex.Cr.App.1985).

It must be kept in mind that the test applies not only to the conviction but to the punishment assessed as well. Thus if there is a reasonable possibility that the error tainted evidence might have contributed to either the conviction or the punishment assessed, then error in the admission of evidence is not harmless federal constitutional error. Plante v. State, 692 S.W.2d 487 (Tex.Cr.App.1985); Maynard v. State, 685 S.W.2d 60, 67 (Tex.Cr.App.1985); Johnson v. State, 660 S.W.2d 536 (Tex.Cr.App.1983). See also Ford v. State, 676 S.W.2d 609 (Tex.App.-Beaumont 1984); Jordan v. State, supra.

Since the complained of testimony occurred at the penalty stage of the capital murder trial, the question to be resolved relates to “the punishment assessed” or more appropriately to the jury's affirmative answers to the special issues which resulted, as a matter of law, in the imposition of the death sentence by the court.

The facts of the instant case show a brutal, unnecessary, senseless murder of a police officer while in the performance of his official duties. The officer was shot and killed by appellant with an AK-47 automatic rifle. Appellant shortly thereafter shot at another officer apparently with the same weapon and also threw a hand grenade which luckily did not explode. There was other evidence as to appellant's use and possible sale of drugs, his lifestyle and mental health instability, etc. There was no evidence of prior convictions, but there was evidence of prior unadjudicated offenses. To this evidence was added the tainted testimony of the State's doctors on future dangerousness.

Under this record the death penalty assessed by virtue of the jury's affirmative answers to the special issues submitted at the penalty stage of the trial could not be considered unusual, but that is not the question presented. The question is whether or not we can say that the improperly admitted evidence was harmless error beyond a reasonable doubt and did not contribute to the affirmative answer to the special issue “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Article 37.071(b)(2), V.A.C.C.P. In determining this question the main consideration is the probable impact on the minds of the average juror. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Gauldin v. State, 683 S.W.2d 411, 415 (Tex.Cr.App.1984). The issue of future dangerousness was one of the critical issues before the jury at the penalty stage, and the tainted evidence was the only medical and opinion testimony offered on that issue upon which the State had the burden of proof. I must conclude, though reluctantly, that there was a reasonable possibility that the testimony contributed to the jury's verdict. I cannot say that the evidence admitted on violation of appellant Powell's federal constitutional rights constituted harmless error beyond a reasonable doubt. See White v. Estelle, supra; Holloway v. Arkansas, 435 U.S. 475, 489-490, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978).

For the reasons stated, I dissent. CLINTON, J., joins this opinion.

TEAGUE, Judge, dissenting and concurring.

I join the dissenting opinion that Presiding Judge Onion has filed in this cause because he has stated therein what I believe is the law today in this State on the Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), issue that is before this Court to be resolved. Notwithstanding my agreement with Presiding Judge Onion's dissenting opinion, but because I believe that what Judge McCormick has stated and held in the majority opinion that he writes for the Court will soon be, in principle at least, the law of the federal constitutional land, on the Estelle v. Smith, supra, issue, I am constrained to agree with what he has stated and held. Therefore, I dissent and concur.

Powell v. Texas, 492 U.S. 680, 109 S.Ct. 3146 (1989). (Direct Appeal - Reversed)

Defendant was convicted in a Texas trial court of capital murder, and sentenced to death. On his appeal, the Texas Court of Criminal Appeals, 742 S.W.2d 353, affirmed, and defendant petitioned for writ of certiorari. The United States Supreme Court, 108 S.Ct. 2891, vacated and remanded for further consideration. On remand, the Texas Court of Criminal Appeals, 767 S.W.2d 759, again affirmed, and defendant again petitioned for writ of certiorari which was granted. The Supreme Court held that: (1) defendant was deprived of his Sixth Amendment right to counsel when psychiatric examinations were performed by state experts, without notice to defendant or his attorney that the examinations would encompass issue of future dangerousness, and (2) defendant's introduction of psychiatric testimony in support of defense of insanity did not waive his Sixth Amendment right to notification. Reversed.

Powell v. State, 897 S.W.2d 307 (1994). (Direct Appeal - Reversed)

Defendant was convicted in the 167th Judicial District Court, Travis County, Tom Blackwell, J., of capital murder, and was sentenced to death. The Court of Criminal Appeals affirmed, 742 S.W.2d 353. After remand, 487 U.S. 1230, 108 S.Ct. 2891, 101 L.Ed.2d 926, the Court of Criminal Appeals again affirmed, 767 S.W.2d 759. After his conviction was reversed, 492 U.S. 680, 109 S.Ct. 3146, 106 L.Ed.2d 551, defendant was retried, and he was convicted in the 167th Judicial District Court, Travis County, Bob Jones, J., of capital murder, and he was again sentenced to death. On direct appeal, the Court of Criminal Appeals, Meyers, J., held that: (1) initial voir dire could be limited to death qualification; (2) expert who testified unfavorably to defendant at first trial nevertheless qualified as “disinterested” expert who could be appointed by court to examine defendant; (3) jury was incorrectly charged on special issue; and (4) relief was required for improper charge on special issues despite fact that it was given at defendant's request. Sentence vacated and matter remanded. Clinton and Maloney, JJ., filed concurring opinions. McCormick, P.J., and Miller and White, JJ., dissented.

Powell v. Quarterman, 283 Fed.Appx. 186 (5th Cir. 2008). (Habeas)

Background: Petitioner, who had been convicted of capital murder and sentenced to death under Texas law, filed petition for federal habeas corpus relief. The United States District Court for the Western District of Texas denied the petition. Petitioner requested certificate of appealability (COA) authorizing him to appeal this decision.

Holding: The Court of Appeals held that petitioner was entitled to COA on issues of whether capital resentencing proceeding following affirmance of the conviction required a complete new trial, whether prosecution's failure to timely disclose exculpatory evidence violated his right to due process, and whether emergency room doctor's testimony violated defendant's right against self-incrimination. Request for COA granted.

PER CURIAM:

Following his third punishment trial in 1999, David Lee Powell was convicted and sentenced to death for the 1978 capital murder of Austin Police Officer Ralph Ablanedo. He requests a certificate of appealability (“COA”) authorizing him to appeal the district court's denial of federal habeas relief. The request for a COA is GRANTED.

I.

Powell was valedictorian and “most likely to succeed” in his high school class. After graduating from high school a year early, he was accepted into the Plan II Honors Program at the University of Texas. While there, he became an anti-war protester and began using drugs. He never finished college. By 1978, when he was 28 years old, he had become a heavy user of methamphetamine and was also selling it. He was wanted by the police for misdemeanor theft and for passing over 100 bad checks to merchants in the Austin area. He had become so paranoid that he had begun carrying around loaded weapons, including a .45 caliber pistol, an AK-47, and a hand grenade.

On May 17, 1978, Powell asked his former girlfriend, Sheila Meinert, to drive him from Austin to Killeen, Texas. They went in Powell's car, a red Mustang. Powell had the .45, the AK-47, and the hand grenade with him, as well as a backpack containing about 2 1/4 ounces of methamphetamine.

Officer Ablanedo was on duty in his marked patrol car when he spotted the Mustang and noticed that it did not have a rear license tag. He pulled the vehicle over. Meinert got out of the car and approached Ablanedo. She told him that she had lost her driver's license, but showed him her passport. Ablanedo also checked Powell's driver's license and asked the dispatcher to run a warrant check on Meinert and Powell. The dispatcher informed Ablanedo that the computers were not functioning properly, but that there were no local warrants for Meinert. Ablanedo gave Meinert a ticket for failing to display a driver's license and allowed her and Powell to leave. Moments later, the dispatcher told Ablanedo that Powell had a “possible wanted” for misdemeanor theft. Ablanedo signaled for Meinert to pull over again. Meinert testified that she got out of the car and as she was approaching the officer, she heard a very loud noise and ran back to the car. As Ablanedo approached the Mustang, Powell shot him with the AK-47, in semi-automatic mode, through the car's back window, knocking Ablanedo to the ground. As Ablanedo tried to get up, Powell fired at him again, after switching the AK-47 to automatic mode.

Bobby Bullard, who happened to be driving by on his way home from work, witnessed the shooting of Ablanedo. He testified at trial that he saw shots fired from the Mustang that knocked out the back windshield. He saw a man sitting in the middle of the front seat, lying on top of the console, sort of into the back seat. He said that the man who fired the shots had long hair and was wearing a white t-shirt, and at trial he identified Powell as the man he saw that night. Edward Segura, who lived in the area, heard what he thought sounded like machine gun fire. When he went outside, he saw a red Mustang driving away. Segura testified that Ablanedo said that he had been shot. When Segura asked, “who was it,” Ablanedo replied, “a girl.”

When the dispatcher learned that there was a possible warrant for Powell, as a matter of routine, she sent Officer Bruce Mills to assist Ablanedo. When Mills arrived at the scene a few minutes later, he found Officer Ablanedo lying on the ground. Although Ablanedo wore a bullet-proof vest, it was not designed to withstand automatic weapon fire. Ablanedo suffered ten gunshot wounds and died on the operating table at the hospital, about an hour after he was shot.

Bullard, his wife Velma, who came outside after seeing the lights from the police car, Segura, and Officer Mills all attempted to aid Ablanedo while waiting for the ambulance to arrive. All of them testified that Ablanedo said, repeatedly, “that damn girl” or “that Goddamn girl.” FN1 Mills testified that Ablanedo told him that a girl and a guy were in the car, and that they were armed with a shotgun or machine gun. Mills said that Ablanedo told him, twice, that “He got me with the shotgun.”

FN1. Dr. John Blewett, an emergency room physician, and Austin Police Officer Roger Napier, testified that they, too, heard Ablanedo say “that damn girl” when he was in the emergency room prior to his death.

Apparently one of the shots fired by Powell flattened one of the Mustang's rear tires. Meinert drove the car into the parking lot of a nearby apartment complex. Officer Villegas, who was en route to the scene and who had heard a description of the Mustang in the dispatcher's broadcast, spotted the vehicle in the apartment complex parking lot and pulled in. He immediately came under automatic weapon fire. He testified that a male with medium length hair and no shirt was firing at him. More police officers arrived, and a shoot-out ensued. Miraculously, no one was shot.

Sheila Meinert testified that Powell handed her a hand grenade in the apartment complex parking lot and told her to remove the tape from it. She said that she started peeling tape off the grenade, but was hysterical and shoved it back at him and she did not know what he did with it. Officer Bruce Boardman testified that the shooting in the apartment complex parking lot came from a person at the passenger side of the Mustang. He said that he saw that person appear again, making “a throwing motion” over the top of the Mustang, and simultaneously, a female at the driver's side of the Mustang ran away from the car, screaming hysterically and flailing her arms. The person at the passenger's side (Powell), after making the “throwing motion,” began running away from the scene toward the grounds of a high school across the street.

Later, officers found a live hand grenade about ten feet away from the driver's door of Officer Villegas's car that was parked in the same parking lot. The pin for the grenade was discovered outside the passenger side of the Mustang where the person making the throwing motion had been. The grenade, which had a kill radius of 16 feet and a casualty radius of 49 feet, did not explode because the safety clip had not been removed. The State presented evidence that it was likely that only someone who had been in the Army (Powell had not) would have been familiar with the concept of a safety clip (also known as a jungle clip), which was added to the design during the Vietnam War to keep grenades from exploding accidentally if the pin got caught on a branch.

Meinert was arrested in the apartment complex parking lot. She was later convicted as a party to the attempted capital murder of Officer Villegas. Powell was arrested a few hours later, around 4:00 a.m. on May 18, after he was found hiding behind some shrubbery on the grounds of the high school. Powell's .45 caliber pistol was found on the ground near where he was hiding, and his backpack containing methamphetamine with a street value of approximately $5,000 was found hanging in a tree.

Law enforcement officers searched the Mustang and recovered handcuffs, a book entitled “The Book of Rifles”, handwritten notes about weapons, cartridge casings, the AK-47, a shoulder holster, and a gun case. Following a search of Powell's residence, officers seized another hand grenade, methamphetamine, ammunition, chemicals and laboratory equipment for the manufacture of methamphetamine, and military manuals.

In September 1978, Powell was convicted and sentenced to death for the capital murder of Officer Ablanedo. His conviction and sentence were affirmed on direct appeal. Powell v. State, 742 S.W.2d 353 (Tex.Crim.App.1987). The Supreme Court vacated and remanded for reconsideration in the light of Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). Powell v. Texas, 487 U.S. 1230, 108 S.Ct. 2891, 101 L.Ed.2d 926 (1988). On remand, the Texas Court of Criminal Appeals reaffirmed Powell's conviction and sentence. Powell v. State, 767 S.W.2d 759 (Tex.Crim.App.1989). The Supreme Court vacated Powell's sentence. Powell v. Texas, 492 U.S. 680, 109 S.Ct. 3146, 106 L.Ed.2d 551 (1989).

Powell was convicted and sentenced to death again following his second trial in November 1991. Although the Supreme Court had vacated only the sentence, Texas law at that time required a retrial of the entire case even if the reversal was only for sentencing error. On direct appeal, the Texas Court of Criminal Appeals affirmed the conviction, but vacated the sentence and remanded for a new sentencing trial, because the trial court had not instructed the jury to answer the special issue on deliberateness. Powell v. State, 897 S.W.2d 307 (Tex.Crim.App.1994). By that time, Texas law had changed and no longer required a retrial of the entire case when reversal was only for sentencing error.

Powell filed a petition for a writ of certiorari, claiming that he was entitled to a complete new trial, and not just a new trial on punishment. The trial court stayed the proceedings until the Supreme Court denied certiorari. Powell v. Texas, 516 U.S. 808, 116 S.Ct. 54, 133 L.Ed.2d 19 (1995). Powell then filed a motion in the trial court to set aside his conviction and for a complete new trial on guilt or innocence as well as punishment. The trial court denied that motion on May 21, 1996.

Before Powell's third trial began, the defense tried to establish that Meinert was involved in the shooting of Ablanedo and in the exchange of gunfire with officers in the apartment complex parking lot. In pursuit of that theory, they retained a metallurgist to conduct chemical analysis of the bullet fragments recovered from Ablanedo's body after exhumation and a second autopsy in 1998. They also subpoenaed Meinert's parole records.

The testing by the defense expert was incomplete at the time the third trial commenced in February 1999. After they were denied a continuance, defense counsel made a strategic decision not to present any evidence of their “two-shooter” theory. Instead, Powell's counsel told the jury in his opening statement that Powell was responsible for every aspect of the crime, that Meinert had no part in it, and that, therefore, he would not ask the State's witnesses “a single question” about the circumstances of the crime because “there's not going to be a question about how it was done.” The defense theory was that Powell was no longer a future danger. In order to preclude the prosecution from introducing victim impact evidence, Powell waived his right to offer mitigation evidence.

Meinert's parole records were delivered to the trial judge on March 1, the sixth day of the State's case and the day before Meinert testified. The trial court, after in camera examination, released the records to defense counsel. Meinert's parole file included the following documents: (1) A seven-page document on TDCJ letterhead containing an “official version” of the offense. (2) A document entitled “Statement of Fact Form,” executed by Assistant District Attorney Rosemary Lehmberg. It and the “official version” of the offense stated that Officer Ablanedo was shot several times, fell to the ground, and tried to get up, “but as he did, they shot him again, killing him,” and that as soon as Officer Villegas approached the red Mustang in the apartment complex parking lot, “ they began firing at him and other officers at the scene.” (Emphasis added.) (3) A July 21, 1988 letter written by Austin Police Association president Dell Shaw, accusing Meinert of throwing a hand grenade at Officer Villegas, along with 25 pages of signatures of police officers and others. (4) A May 27, 1987 letter authored by then Assistant District Attorney Terry Keel, requesting that the Board deny parole to Meinert, with an attached letter authored by Arlene Ablanedo-McNeill, the victim's sister, accusing Meinert of throwing a hand grenade at Officer Villegas, accompanied by ten pages of signatures of police officers and law enforcement personnel. (5) A September 22, 1988 letter written by Arlene Ablanedo-McNeill, protesting Meinert's parole and stating that Meinert threw a hand grenade at Officer Villegas, accompanied by 17 pages of signatures of police officers and others.

The persons who signed the letters to the parole board accusing Meinert of throwing the hand grenade include: (1) Officer Bruce Boardman, who was the only witness who testified at Powell's trial that Powell threw the grenade; (2) Terry Keel, the lead prosecutor at Powell's second trial; (3) Robert Smith, the lead prosecutor at Powell's third trial; (4) Officers Justin Shaffer and Lupe Trevino, who testified about Powell's arrest; (5) Officer Napier, who testified about Meinert's statement to the police; (6) Bruce Mills, who testified about Ablanedo's dying declaration; and (7) six officers who testified about various aspects of the investigation.

Powell moved for a continuance in order to attempt to interview the persons who signed the letters, but the trial judge denied it. Counsel made no attempt to use Meinert's parole records in an attempt to establish that Meinert played a role in the shooting or the throwing of the grenade. FN2. In a formal bill of exception filed in the trial court in March 1999, Powell stated that the court instructed counsel not to use Meinert's parole records to cross-examine her. The record does not support that statement. In denying the defense request for an adjournment, the trial court stated that the parole file documents were inadmissible hearsay. Just before Meinert testified, defense counsel told the court that the defense was not going to use the documents from Meinert's parole file, because the defense received the material too late to develop the two-shooter theory.

As proof of future dangerousness, the State relied primarily on the facts of the murder and the shoot-out at the apartment complex parking lot, including the throwing of the hand grenade. In addition, the State presented evidence that in 1970, Powell stole a car and used false identification, and that, in early 1978, he followed a maintenance worker home with a knife after the worker prevented him from breaking into a storage building where his landlord had stored his property after he failed to pay his rent. The State also presented evidence of incidents occurring during Powell's incarceration following Ablanedo's murder. In October 1978 he was displeased with the television program being shown in the prison and spat on a corrections officer. In February 1979, he spat at an employee at Rusk State Hospital after the employee told him he would have to get up at 6:00 a.m. to use a razor. In April 1979, he beat on a door with a chair because he was angry after security would not let him have some food that a visitor had brought to him, and he told a security technician at Rusk State Hospital that he could make $2000 by arranging an escape. In May 1979, he kicked a guard in the courtroom when the guard restrained him while he was trying to hug or kiss his girlfriend. In 1988, he received a disciplinary report for having an extra pair of socks and shorts. In 1989, he received a disciplinary report for playing his radio too loud. In 1990, he received a disciplinary report for not making his bed before 6:00 a.m. Also in 1990, he kicked and banged on a door when he was not allowed to use the telephone to call his attorney. During jury selection for his 1991 trial, he became angry and cursed a guard when he was not allowed to have contact lens wetting solution for his sore eyes. In 1992, he put his foot in front of the door to the day room when a corrections officer was trying to close the door. Finally, in 1996, he received a disciplinary report for refusing to obey an order to remove a poster from the wall of his cell.

Powell's counsel presented evidence that Powell had been a smart, well-mannered, courteous, law-abiding young man with great promise. He grew up on a dairy farm and attended a rural school. But he was exceptionally bright. He was valedictorian of his very small high school class, and graduated a year early. He entered the honors program at the University of Texas. But his life soon took a decided turn downhill. He began using drugs, which led to his debilitating addiction, drug dealing, thefts, and increasingly irrational behavior. The defense also presented evidence that once he settled down in prison his attitude took a turn much for the better. Powell became a model prisoner and had developed positive relationships with many Texas citizens. His family and friends testified that, once his involvement with drugs ended after he went to prison, Powell was very much like the young man they had known before he became involved with drugs-pleasant, sociable, friendly, and helpful to others. Several prison guards testified for the defense that Powell was quiet, well-mannered, and not a troublemaker in prison. There was evidence that he had helped other inmates learn to read, and that he was involved with other citizens in various forms of volunteer work. He was also admitted to the work-capable program, and had a job in the prison garment factory, where he had access to scissors and other sharp instruments. The assistant plant manager testified that Powell was a good worker in the garment factory.

Thus, nearly all of the evidence of future dangerousness related to the events before Powell went to prison. Furthermore, in closing argument, prosecutor Darla Davis referred to Dr. Wallace's testimony when arguing that Powell was not under the influence of drugs at the time of the murder and shoot-out. In his final closing argument, prosecutor Robert Smith argued that Powell's future dangerousness was evident from the fact that he was in full control, and not crazed on drugs, when he shot Ablanedo and threw the hand grenade: You want to pretend to me that David Lee Powell knew there was tape on that grenade when he threw it? He's hunkered down in the Mustang in a fire fight for his life. He gave it to Sheila and told her what to do. You see the photograph, it's ten feet from Villegas' patrol car. You think he wasn't trying to kill people?

The jury answered the special issues on deliberateness and future dangerousness affirmatively and the trial court sentenced Powell to death.

Powell filed a motion for new trial in which he argued, among other things, that his due process rights were violated by the untimely disclosure of the exculpatory evidence in Meinert's parole file. In response, the state presented affidavits from Lehmberg, Shaw, and others who signed the protest letters, in which they stated that they had no personal knowledge regarding whether Meinert fired any shots at either scene or threw the hand grenade. The trial court denied Powell's motion for a new trial.

The Court of Criminal Appeals affirmed Powell's sentence. Powell v. State, No. 71,399 (Tex.Crim.App.2002) (unpublished). The Supreme Court denied certiorari. Powell v. Texas, 537 U.S. 1015, 123 S.Ct. 516, 154 L.Ed.2d 421 (2002). Powell filed an application for state habeas relief in September 2001. The Texas Court of Criminal Appeals denied relief in September 2002. Ex parte Powell, No. 7,407-02 (Tex.Crim.App. Sept. 25, 2002) (unpublished order). Powell filed a petition for federal habeas relief on October 30, 2003. The district court adopted the magistrate judge's report and recommendation and denied relief on December 27, 2005. The district court also denied a COA.

II.

Powell requests a COA from this court authorizing him to appeal the district court's denial of habeas relief for three claims:

Claim 1. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which were decided while Powell's case was on direct appeal, required that Powell's third trial (a capital resentencing proceeding following affirmance of the conviction) be a complete new trial on all the elements of the capital offense (including guilt-innocence elements) rather than just a retrial on the elements formerly treated as sentencing factors.

Claim 2. The prosecution's failure timely to disclose documents in which agents of the prosecution asserted that Meinert fired shots at Officer Ablanedo and the other officers and threw a hand grenade violated Powell's right to due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Claim 3. Powell's Fifth and Fourteenth Amendment rights under Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), were violated when an emergency room doctor, who did not provide Miranda warnings to Powell when he examined Powell following his arrest, testified for the prosecution about Powell's answers to questions the doctor asked during the examination.

To obtain a COA, Powell must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, he must demonstrate that “jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). In making our decision whether to grant a COA, we conduct a “threshold inquiry,” which consists of “an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 327, 336, 123 S.Ct. 1029. “While the nature of a capital case is not of itself sufficient to warrant the issuance of a COA, in a death penalty case any doubts as to whether a COA should issue must be resolved in the petitioner's favor.” Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir.2005) (internal quotation marks and citations omitted).

Based on our limited, threshold inquiry and general assessment of the merits of Powell's claims, we conclude that those claims present issues that are adequate to deserve encouragement to proceed further. We therefore GRANT a COA authorizing Powell to appeal the district court's denial of habeas relief for each of the three claims that Powell has presented. We think that these issues have been well briefed. If, however, Powell wishes to file a supplemental brief with respect to the merits of this claim, he may do so within thirty days of the date of this order. The supplemental brief should address only matters, if any, that have not already been covered in the brief in support of the COA application. If Powell files a supplemental brief, the State may file a response fifteen days thereafter.

III.