Satterwhite v TX Respondents Brief

    No. 86-6284

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1987

JOHN T. SATTERWHITE,
Petitioner,

v.

THE STATE OF TEXAS,
Respondent.

On Petition for Writ of Certiorari 
to the Texas Court of Criminal Appeals

RESPONDENT’S BRIEF



» *

- 1 -

QUESTIONS PRESENTED

I. Whether the admission of psychiatric testimony at the 
punishment phase of Satterwhite’s capital murder trial - 
deprived him of his sixth amendment right to counsel 
in violation of Estelle v. Smith, 451 U.S. 454 (1981).

II. Whether, if there was a Smith violation, it was 
harmless beyond a reasonable doubt.



table of contents
Page

QUESTIONS PRESENTED >

TABLE OF AUTHORITIES >v

OPINION BELOW 1

JURISDICTION 2

CONSTITUTIONAL PROVISIONS INVOLVED 2

STATEMENT OF THE CASE 2

A. Course o f Proceedings Below 2

B Statement o f the Facts 3

SUMMARY OF ARGUMENT 10

ARGUMENT ...................................................... 11

I. THE ADMISSION OF DR. GRISON’S 
TESTIMONY DID NOT VIOLATE THE 
SIXTH AMENDMENT H

A. Defense counsel was put on notice of
the examination and its scope 11

B. There was no prosecutorial misconduct
in this case ..................................................  13

H ANY ERROR IN THE ADMISSION OF 
DR. GIUGSON’S TESTIMONY WAS 
HARMLESS BEYOND A REASON­
ABLE DOUBT 16

- i i -

A The harmless error doctrine is ap-

-111-

Page

1. The harmless error doctrine applies
to capital cases generally 16

2. The harmless error doctrine applies
to denials of counsel 18

3. The harmless error doctrine applies
to the punishment phase of capital 
trials........................................................ 19

B. The correct standard for determining
harmless error is whether, absent the 
improperly admitted evidence, the jury 
nonetheless would have reached the 
same result 21

C. There was overwhelming evidence to 
support the jury’s affirmative answers 
to the punishment issues absent
Dr. Grigson's testimony 22

1. The jury could have reached the
same verdict on punishment 
without considering any psychiatric 
testimony 22

2. The court below properly considered 
Dr. Schroeder’s testimony in deter­
mining that the admission of Dr. 
Grigson’s testimony was harmless 24

3. Dr. Grigson’s testimony was not
prejudicial per se 30

CONCLUSION 31



Cnscs
1 /V15LL U l1 AU 1 U U Ill I 111,0

Page

Andrade v. McCotter, 805 F.2d 1190 (5th Cir.), cert, 
denied, __ IJ.S. 107 S.Ct. 660 (1986) ..............  18

Hare foot v. Estelle, 463 U.S. 880 (1983) ............  24,30

Buchanan u. Kentucky, __ U.S. __, 107
S.Ct. 2906(1987).......................................  13,15,16,20

Cape v. Francis, 741 F.2d 1287 (11th Cir. 1984) . . .  20

Cardinale v. Louisiana, 394 U.S. 437 (1969)............  27

Chapman v. California, 386 U.S. 18 (1967) . . . 17,21,22

Coleman v. Alabama, 399 U.S. 1 (1970)..................  18

Estelle v. Smith, 451 U.S. 454 (1981).............. passim

Evans v. MeCottcr, 790 F.2d 1232 (5th Cir.), cert, 
denied, _  U.S. 107 S.Ct. 327 (1986) ..............  18

Felder v. MeCottcr, 765 F.2d 1245 (5th Cir. 1985), 
cert, denied sub nom. McCotter v. Felder,
-  V.s. 106 S.Ct. 1523 (1986)........................... 18

Holloway v. Arkansas, 435 U.S. 475 (1978)............  18

Hughes v. Hopper. 629 F.2d 1036 (5th Cir. 1980), 
cert, denied, 450 U.S. 933 (1981) ........................... 13

. . 23 

19,20

Jackson v. Virginia, 443 U.S. 307 (1979) 

Jurek v. Texas, 428 U.S. 262 (1976) 

Maggio v. Fulford, 462 U.S. I l l  (1983) . 23

Meadows v. Kuhlman, 812 F.2d 72 (2d Cir. 1987). . 18

Mealer v. Jones, 741 F.2d 1451 (2d Cir. 1984)........  18

Michigan v. Tyler, 436 U.S. 499 (1978)....................  27

Milton v. Wainwright, 407 U.S. 371 (1972)........  18,25

Miranda v . Arizona, 384 U.S. 436 (1966)............  4,26

Moore v. Illinois, 434 U.S. 220 (1977) ..........................  18

Muniz v. Procunier, 760 F.2d 588 (5th Cir.), cert, 
denied sub nom. McCotter v. Muniz, _  U.S. _
106 S.Ct. 267 (1985)............................................. ’ . 20

Murray v. Carrie,, _  U.S. _  106 S.Ct.
2639 (1986) ................................................................  28

O'Bryan v. Estelle, 714 F.2d 365 (5th Cir. 1983), 
cert, denied sub nom. O'Bryan v. McKaskle 
465 U.S. 1013 (1984) ...............................................  23

Patton v. Yount, 467 U.S. 1025 (1984)....................  23

Powell v. State, __S.W .2d_, No. 67,630 (Tex.
Crim. App. July 8, 1987) 20

Robinson u. Percy, 738 F.2d 214 (7th Cir.
1984> ......................................................................  18,25

Smith v. Murray, _  U.S. _ ,  106 S.Ct.
2661 (1986).................................................  17,28,29,30

Smith u. Phillips, 455 U.S. 209 (1982) .......................  27

Strickland v. Washington, 466 U.S. 668 (1984) . . : . 24

Cases Page



Cases Cage

Tison v. Arizona, U .S .__, 107 S.Ct. 1676
(1987)........................................................................... 24

United States i>. Hastings, 461 U.S. 499 (1983) 21

United States v. Lane, __U.S. __ , 106 S.Ct.
725 (1986)..............................................................  22,24

United States v. Prior, 546 F.2d 1254
(5th Cir. 1977) ..............................................................  13

Wainwright v. Sykes, 433 U.S. 72 (1977) ............ 17,28

White v. Estelle, 720 F.2d 415 (5th Cir. 1983)............ 20

Constitutions, Statutes and Rules

U.S. Const. Amend. V ............................................2,13,26

U.S. Const., Amend. VI ....................................... passim

28 U.S.C. § 1257(3)................ ....................................... 2

Tex. Code Crim. Proc. Ann. art. 37.071 
(Vernon 1979)..........................................................  2,14

Tex. Code Crim. Proc. Ann. art. 46.02 
(Vernon 1974)............................................................  13

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1987

JOHN T. SATTERWHITE,

v.
Petitioner,

THE STATE OF TEXAS,
Respondent.

On Petition for Writ of Certiorari 
to the Texas Court of Criminal Appeals

RESPONDENT’S BRIEF

TO THE HONORABLE JUSTICES OF THE SUPREME 
COURT:

NOW COMES the State of Texas, Respondent1 
herein, by and through its attorney, the Attorney 
General of Texas, and fdes this Brief.

OPINION BELOW

The opinion of the Texas Court of Criminal 
Appeals was delivered on September 17, 1986, and is

1 For clarity, the Respondent is referred to as "the state," and 
petitioner as "Satterwhite."



published as Sntterwhite u. State, 726 S.W.2d 81 (Tex. 
Grim. App. 1986), (A.78-102).2 Satterwhite’s motion for 
leave to file motion for rehearing was denied on 
December 3,1986.

JURISDICTION

Satterwhite has invoked the jurisdiction of this 
Court under the provisions of 28 U.S.C. 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

Satterwhite bases his claims upon the fifth and 
sixth amendments to the United States Constitution.

STATEMENT OF TIIE CASE

A. Course of Proceedings Below

Satterwhite was indicted on April 4,1979, in Bexar 
County, Texas, for the murder of Mary Francis Davis, 
while in the course of committing and attempting to 
commit the offense of robbery. Trial began on 
September 17, 1979, and on September 19, 1979, the 
jury found Satterwhite guilty of the offense of capital 
murder. On September 20, 1979, aRer a punishment 
hearing, the jury answered affirmatively the special 
issues submitted pursuant to Article 37.071, Tex. Code 
Crim. Proc. Ann. (Vernon 1979).3 Accordingly,

2 "A.," refers to the Joint Appendix, "SF" refers to the 
statement of facts of Satterwhite’s trial, and "Tr.” refers to the 
transcript.

3 Tex. Code Crim. Proc. Ann. art. 37.071 (Vernon 1979) 
provides, in pertinent part, as follows:

(b) On conclusion of the presentation of the evidence, the 
court shall submit the following issues to the jury:

(1) whether the conduct of the defendant that caused the 
death of the deceased was committed deliberately and with the

(footnote continued on following page!

punishment was assessed at death. Satterwhite s 
conviction and sentence were affirmed by the Texas 
Court of Criminal Appeals, which affirmed on 
September 17, 1986. Satterwhite v. State, 726 S.W.2d 81 
(Tex. Crim. App. 1986). On Junel, 1987, the Court 
granted Satterwhite’s petition for writ of certiorari on 
the question whether

Petitioner was denied effective 
assistance of counsel, a fair and impartial 
trial, equal protection of law, due process of 
law and his right to be free from cruel and 
unsual punishment guaranteed by the fifih, 
sixth, eighth, and fourteenth amendments 
to the United States Constitution because 
the trial court allowed witness, James 
Grigson, M.D., to testify to evidence 
obtained in violation of Article I,
Section 10, of the Texas Constitution and in 
violation of the fiRh, sixth and fourteenth 
amendments of the Constitution of the 
United States.

Satterwhite v. Texas,___U.S.___ , 55 U.S.L.W. 3807.

B. Statement of the Facts

Satterwhite was arrested on March 13, 1979, less than 
two days aRer the commission of the capital murder* and 
charged with the offense on March 15, 1979 (Tr. 3). On * 4

Ifootnote continued from previous page)

reasonable expectation that the death of the deceased or another
would result; . ,

(2) whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing
threat to society.

4 The facts surrounding Satterwhite’s arrest are set forth in 
the opinion of the court below (A. 87-90).



March 16, 1979, the slate filed a motion for psychological 
examination requesting evaluation for purposes of 
determining competency to stand trial, sanity at the time of 
the offense, and "also with regard to the defendant’s 
propensity for violence and dangerousness in the future as 
well as the likelihood of the defendant committing future acts 
of violence." (A. 3; Tr. 1). l)r. Betty Schroeder was appointed 
that day (A. 5; Tr. 2).

Dr. Schroeder examined Satterwhite on March 16,
1979. Prior to any conversation, she administered 
Mirandah warnings off the standard police issued card.
She discussed with Satterwhite whether an attorney 
had been appointed (A. 47; SF VIII 2659). At no time 
prior to or during the interview did Satterwhite request 
counsel (A. 47; SF VIII 2642), and he signed a release 
form prior to examination.

VOIR DIRE EXAMINATION ON BEHALF OF 
DEFENDANT BY MR. WOODS:

Q. Dr. Schroeder, my name is Richard Woods 
one of the attorneys appointed and I have 
never met you but I have heard about you.
You had a conversation and conference with 
John Satterwhite?

A. Yes. I did.

Q. Okay. Prior to having this conversation with 
him did you give him any warnings or tell 
him what you were doing was going to be 
used in Court against him?

A. Yes. I did.

5 Miranda e. Arizona, 384 U.S. 436 (1966).

Q. How did you tell him this?

A. Discussing it with him and I keep a little card 
in my billfold that I refer to the Miranda 
warnings.

Q. What kind of card do you keep in your bill­
fold, do you have that available?

A. I have it back in the other office. I keep it in 
my billfold at all times.

Q. You don’t carry your billfold with you at all 
times?

A. All times except I don’t have it now.

THE COURT: Is it one of the cards the police 
department issues?

THE WITNESS: I got it from them. Yes.

THE COURT: The Court will take notice
that contains the Miranda Warning.

ON BEHALF OF THE DEFENDANT BY MR. WOODS:

Q. And you gave Mr. Satterwhite the Miranda 
warnings so to speak that he had a right to 
have a lawyer to be present during this?

A. Yes. We discussed it and even I asked him to 
sign a release in order that I might 
appropriately release the information he was 
to give me.

Q. Did he sign the release?



6

A. He did.

Q. And did he have a conversation with you?

A. Yes. Rather lengthy one.

Q. How long did that last?

A. I have seen him on a number of occasions. 
On that particular occasion I would say 
probably no more than an hour or hour and 
fifteen minutes.

Q. And he at no time during this interview or 
conference asked that a lawyer be present or 
anything of that nature?

A. No. Not at that time.

Q. What dale was this that you saw him and you 
gave him this warning?

A. I believe I received the order and executed it 
on the same day, March 16,1979.

(A. 46-48; SF VIII 2641-43; see SF VIII 2646-47).

At the punishment phase of trial, Dr. Schroeder 
testified that on March 16, 1979, she administered 
various standardized tests (A. 51-52; SF 2648-51). She 
attempted to further test Satterwhite on a number of 
other occasions, but Satterwhite refused (A. 51, 53-54; 
SF VIII 2648, 2652-53). In particular, on April 8, 1979, 
Dr. Schroeder sent an associate to evaluate him, but 
Satterwhite gave "her an answer which was evasive and 
he did not care to participate at that time." (A. 53; SF

7

VIII 2652).*> "In most cases it wasn’t in regard to his 
rights. It was with regard to some physical conditions 
such as being hungry, being tired, it being too early or 
too late." (A. 57; SF VIII 2648). In response to the 
state’s questions regarding Satterwhite’s character and 
without objection from the defense, Dr. Schroeder 
opined that he was of average intelligence, that he had a 
facade of cooperativeness but was guarded in many 
respects,6 7 8 that he had an antisocial personality, and 
that he would constitute a continuing threat to society 
(A. 56; SF VIII 2655-57). •

Subsequent to the appointment of counsel^ on 
April 17, 1979, the state filed with the trial court a 
second motion for psychiatric evaluation again for the 
purpose of determining Satterwhite’s competency, 
sanity, and "propensity for violence and dangerousness 
as well as the likelihood of [his] committing future acts 
of violence." The state requested evaluation by Dr. John
T. Holbrook and Dr. Schroeder (A. 12; Tr. 22), and the 
motion was granted on April 18,1979 (A. 14; Tr. 23).

6 The defense objected to the response as hearsay, and the 
objection was sustained.

7 "The guardedness that I saw in many respects and the 
very cunning kind of guardedness. In fact he examined the release 
with such tenacity that I was really surprised. He even told me a 
few things because I was questioning why he made a multitude of 
marks on the back of it. He told me other experiences he had where 
he felt his rights had been violated." (A. 54-55; SF VIII 2654).

8 Defense attorney Rick Woods was appointed on April 10, 
1979 (A  7-8; Tr. 15), and was officially notified of his appointment 
on April 13, 1979 (A  11; Tr. 17), the same day a written waiver of 
reading of the indictment, signed by both him and Satterwhite, was 
filed with the court (Tr. 20). On May 27,1979, Woods filed a motion 
requesting additional counsel (Tr. 52-53), and on July 25, 1979, 
Steve Takas was appointed co-counsel (A. 24; Tr. 61).



8

On May 18, 1979, a psychological report prepared 
by Dr. James P. Grigson on May 8, 1979, was filed in the 
trial court pursuant to court order (A. 15-16; Tr. 30).I 9 
Dr. Grigson examined Satterwhite on May 3, 1979, after 
administering warnings and specifically informing him 
that the evaluation would include the future 
dangerousness issue.

A. I first attempted to examine him on March 
the 19th of this year but the first time I was 
able to examine him was May 3rd of this 
year.

Q. And prior to the examination did you give 
him any type of admonitions to him in the 
way of warnings?

A. Yes, sir. I did. I explained to him on both 
occasion the purposes of the examination in 
terms of the three questions, that I was 
primarily doing the evaluation in order to 
determine the question of competency, and 
the question of sanity or insanity and the 
question of whether or not he presented a 
continuing threat to society, whether or not 
there was a question as to propensity of 
violence, dangerousness.

I also, after explaining what those three 
questions meant, explained to him that I did 
state that there was a Federal Judge by the 
name of Judge Robert Porter in Dallas who 
had ruled in cases in a case where if an 
individual was charged with Capital Murder

9 Dr. Grigson testified that the examination was performed 
pursuant to a court order (SF VIII 2694, 2708), but that order is not 
identified in the record on appeal.

9

that they had the right or the option to 
remain silent or to simply refuse the 
examination and no psychiatric examination 
would take place. Now, I did give him all of 
that on both occasions.

Q. And in response to your admonitions on both 
occasions did he at any time agree to confer 
with you?

A. Yes, sir. He did.

Q. Did you at any time tell him that whatever or 
the results of your conference or interview 
with him could be used against him in a court 
of law?

A. I told him with regard to the question of 
dangerousness that if he were to be found 
guilty of Capital Murder that then in the 
second phase of the trial, in the punishment 
phase, that if I found him or any psychiatrist 
who examined him found him to be 
dangerous that this could be used in 
testifying with regard to the case. It could 
result in his getting possibly the Death 
Penalty.

(A. 60; SF VIII 2685-86; see also VIII 2700-02). In 
addition to finding Satterwhite competent to stand trial 
and sane at the time of the offense, Dr. Grigson 
diagnosed him as sociopathic and constituting a 
continuing threat to society (A. 71-72; Tr. 30; SF VIII 
2704-08).



10

On May 29, 1979, the defense filed a motion to 
restrict access to Satterwhite requesting that no person 
he allowed to interview or contact him without first 
obtaining express written consent of his court-appointed 
attorneys or by court order obtained only after an 
adversary healing with notice to counsel (A. 17-18; Tr. 
40) as well as a motion to require the state to divulge 
the names of its witnesses (A. 19-20; Tr. 46). Both 
motions were granted that date (Tr. 41, 47; SF II 280- 
81). On August 24, 1979, Satterwhite moved for psycho­
logical examination to determine competency to stand 
trial and insanity at the time of the offense. Neither 
defense, however, was pursued at trial. Satterwhite 
produced no evidence at either the guilt or punishment 
phases of trial.

SUMMARY OF ARGUMENT

Dr. Origson’s psychiatric examination of 
Satterwhite was not conducted in violation of Estelle v. 
Smith, 451 U.S. 454 (1981). Defense counsel was put on 
notice by the state’s motions and court’s orders, which 
were on file, that his client was to be examined with 
regard to the special issues at the punishment phase of 
trial. Because competent counsel must be charged with 
notice of the case file and because the prosecution was 
not guilty of any misconduct in connection with Dr. 
Grigson’s examination, there was no sixth amendment 
violation.

Alternatively, any error was harmless beyond a 
reasonable doubt. Given the brutal facts of the offense 
and the lay testimony as to Satterwhite’s bad 
reputation, criminal history and violent nature, the jury 
easily could have reached the same verdict on 
pimishinent absent any psychiatric testimony, 
particularly since Satterwhite introduced no evidence at 
either the guilt or punishment phases of trial. When the

11

testimony of Dr. Schroeder is considered along with all 
the other evidence, it cannot be gainsaid that the jury 
would have reached the same result had it not heard Dr. 
Grigson s testimony. A fortiori, any error in the 
admission of Dr. Grigson’s testimony was harmless 
beyond a reasonable doubt.

ARGUMENT

I.

THE ADMISSION OF DR GRIGSON’S
TESTIMONY DID NOT VIOLATE THE
SIXTH AMENDMENT.

A  Defense counsel was put on notice of  
the examination and its scope.

The court below found that "Dr. Grigson’s 
testimony was improperly admitted into evidence in 
violation of appellant’s Sixth Amendment right to 
assistance of counsel." (A. 97). The court found a sixth 
amendment violation because Satterwhite’s right to 
assistance of counsel had attached at the time that 
Dr. Grigson examined him and his "attorneys should 
have been informed that an examination, which would 
encompass the issues of future dangerousness, was to 
take place. (Id.) In fact, however, defense counsel were 
advised by motions of the state, granted by the trial 
court, that an examination was to take place and that 
its scope would extend to the future dangerousness 
issue. On the facts of this case, there can be no question 
that Satterwhite had the opportunity to consult with his 
attorneys prior to the examination, and, therefore, was 
not dpnriwpH 0f Pny constitutionally secured right.



12

The state announced its intent to have Satterwhite 
examined on the future dangerousness issue when, on 
March 16, 1979, it filed its first motion for a psychiatric 
examination. Therein, the state requested that the 
court appoint I)r. Schroeder to examine Satterwhite as 
to his competency and sanity "and also with regard to 
the defendant’s propensity for violence and 
dangerousness in the future as well as the likelihood of 
the defendant to commit future acts of violence." (A. 3; 
Tr. 1 ). The state’s motion was granted the same day (A. 
5; Tr. 2). Counsel was notified on April 13, 1979, that he 
had been appointed to represent Satterwhite (A. 10; Tr. 
17). Defense counsel appeared in court with his client 
that same day for arraignment (A. 1, 9; Tr. 8), at which 
time Satterwhite pled not guilty (A. 1) and he and 
counsel signed a written waiver of reading of the 
indictment (Tr. 20).

The state's second motion for a psychiatric 
examination was filed on April 17, 1979 (A. 12; Tr. 22), 
four days after the appointment of counsel and sixteen 
days before Satterwhite was examined by Dr. Grigson. 
This motion also requested an evaluation of 
Satterwhite’s competency and sanity and "propensity for 
violence and dangerousness as well as the likelihood of 
the Defendant to commit future acts of violence" (id.) 
and was granted the following day (A. 14; Tr. 23).

Experienced defense counsel, whose effectiveness 
has not been questioned, had a professional obligation to 
consult with his client, which he did, and to review the 
file of the case, which the Court must presume he did. 
Competent counsel must be charged with knowledge of 
the prior orders of the court. Were the rule otherwise, 
competent counsel in a capital case would deliberately 
not consult the case file, thereby allowing the trial court 
and the state to commit reversible "error." From 
consultation with his client and review of the case file,

13

defense counsel necessarily discovered the state’s 
motions for examinations as well as the orders granting
them. Here, as in Buchanan v. Kentucky,___U .S .___ ,
107 S.Ct. 2906, 2918 (1987), ”[i]t can be assumed . . .  
that defense counsel consulted with petitioner about the 
nature of this examination."

It is well settled that the prosecution cannot be 
charged with suppressing evidence that defense counsel 
"already has or, with reasonable diligence, he can obtain 
himself." United States v. Prior, 546 F.2d 1254, 1259 
(5th Cir. 1977); see also Hughes v. Hopper, 629 F.2d 
1036, 1039 (5th Cir. 1980), cert, denied, 450 U.S. 933 
(1981). Similarly, defense counsel for Satterwhite 
should not be heard to complain of a lack of notice, given 
the motions and orders for psychiatric examinations 
which were on file. Because defense counsel had ample 
opportunity to consult with Satterwhite, there was no 
sixth amendment violation.

B. There was no prosecutorial 
misconduct in this case.

Thus, this case is very different from Estelle v. 
Smith, 451 U.S. 454 (1981). In Estelle v. Smith, the 
Court found that a pretrial psychiatric examination to 
determine whether a capital murder defendant would 
constitute a continuing threat to society was conducted 
in violation of the fifth amendment privilege against 
self-incrimination and the sixth amendment right to 
counsel. In that case, the trial court sua sponte 
appointed Dr. Grigson to examine the defendant on the 
issue of his competency to stand trial pursuant to Tex. 
Code Crim. Proc. Ann. art. 46.02 (Vernon 1974). 
Dr. Grigson examined Smith without giving any 
warnings regarding his fifth amendment privilege 
against self-incrimination and did not notify defense 
counsel of the psychiatric examination or that it would



14

encompass the issue of the defendant’s future 
dangerousness. After the examination, Dr. Grigson
reported to the court that Smith was competent to stand 
trial. At trial, no issue was raised as to Smith’s 
competency to stand trial or as to the defensive issue of 
insanity at. the time of the alleged offense. After Smith 
was convicted of capital murder at the guilt stage of the 
bifurcated trial, Dr. Grigson was called by the state at 
the penalty stage to testify that, based upon his exami­
nation, he considered 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 Tex. Code Crim. Proc. Ann. art. 37.071(b) (Vernon 
1974), and the court assessed the death penalty.

This Court held that because prior to the 
psychiatric examination Smith had not been warned 
that he had the light to remain silent and that any 
statement made could be used against him at the 
sentencing proceeding, admission at the penalty stage of 
Dr. Origson’s testimony on the crucial issue of future 
dangerousness violated the fifth amendment privilege 
against compelled self- incrimination. The Court 
further held that Smith’s sixth amendment right to 
counsel was violated because defense counsel was not 
notified in advance of the psycliiatric examination or 
that it would encompass the issue of future 
dangerousness and there was no affirmative waiver of 
the right to counsel.

Central to the Court’s finding of a sixth 
amendment violation were the prosecution’s
surreptitious tactics which deprived Smith and his 
counsel of the opportunity to decide whether to 
participate in the examination. Not only were defense 
counsel not notified of the examination or its scope, the 
prosecution did not include Dr. Grigson’s name on a list

15

of witnesses which it was required to furnish to the 
defense. Smith, 451 U.S. at 459. Further, defense 
counsel did not discover until after jury selection had 
begun that Dr. Grigson had submitted a psychiatric 
report to the trial court. Id. at 458 & n.5. Given this 
lack of notice to Smith and his counsel, the Court found 
that he "was denied the assistance of his attorneys in 
making tht: Ig-nnCttiii, decision of whether to submit to 
the examination and to what end the psychiatrist’s 
findings could be employed." Id. at 471.

Amicus for Satterwhite argues, however, that "this 
case is even more egregious than Smith" because "the 
record contains no court order authorizing Grigson to 
interview petitioner for any reason" (Brief of Amicus 
Curiae N.A.A.C.P. Legal Defense and Educational Fund, 
Inc., hereinafter "Am. Br.," 41) and the court’s orders do 
not mention Dr. Grigson by name (Am. Br. 43). The 
state is unable to grasp the significance of this 
distinction. The trial court entered two orders for 
psychiatric examinations of Satterwhite, both of which 
granted motions by the state which requested that 
Satterwhite be evaluated with regard to the special 
issues on punishment. It is of no constitutional 
significance that those orders appointed practitioners 
other than Dr. Grigson. While the sixth amendment 
right to consultation with an attorney prior to an 
examination will "depend on counsel’s awareness of the 
possible uses to which petitioner’s statements in the
proceedings could be put," Buchanan, ___ U.S. a t ___,
107 S.Ct. at 2919, there is no requirement that the 
defense be supplied with the identity of the particular 
psychiatrist who conducts the interview.

Amicus also argues that the trial court’s orders 
were insufficient to put counsel on notice as to the scope 
of the examination because they did not provide that 
Satterwhite was to be examined as to future



*

dangerousness (Am. Br. 42-43). This argument is 
disingenuous. Both the order of March 16 (A. 5; Tr. 2) 
and the order of April 17 (A. 14; Tr. 23) state that the 
trial court had ordered examinations pursuant to the 
state’s motions. When the orders are read in 
conjunction with those motions, as they must be, and as 
competent defense counsel would, there can be no doubt 
as to the purposes for which the examinations were to 
be conducted. Here, as in Buchanan, "[tjhere is no 
question that petitioner’s counsel had this information."
Id. at ___, 107 S.Ct. at 2919. This case is, therefore,
very different from Estelle v. Smith. Given the notice 
afforded defense counsel and the absence of any 
prosecutorial misconduct, there was no violation of 
Satterwhite’s right to counsel.

II.

ANY ERROR IN THE ADMISSION OF 
DR. GRI(ISON’S TESTIMONY WAS
HARMLESS BEYOND A REASONABLE 
DOUBT.

A. The harmless error doctrine is 
applicable to this case.

1. The harmless error doctrine 
applies to capital cases
generally.

Assuming arguendo that Dr. Grigson’s testimony 
was admitted in violation of Estelle v. Smith, any error 
was harmless beyond a reasonable doubt, as the court 
below correctly concluded. Harmless error rules are 
essential to the administration of justice. They "serve a 
very useful purpose insofar as they block setting aside

16 17

convictions for small errors or defects that have little, if 
any, likelihood of having changed the result of the trial," 
Chapman v. California, 386 U.S. 18, 22 (1967).

The qualitative difference between death and other 
punishments is not a sufficient basis for abrogation of 
the harmless error doctrine in capital cases. In Smith v.
Murray,___U .S .____, 106 S.Ct. 2661 (1986), the Court
found that a habeas petitioner’s challenge to the 
admission of psychiatric evidence at his capital trial had 
been procedurally defaulted by his failure to raise the 
issue on direct appeal, thereby waiving any error under 
state procedural rules. The Court held that the 
procedural default doctrine of Wainwright u. Sykes, 433
U.S. 72 (1977), is fully applicable to capital cases.

We reject the suggestion that the principles of 
Wainwright v. Sykes apply differently 
depending on the nature of the penalty a 
State imposes fcr the violation of its criminal 
laws. We similarly reject the suggestion that 
there is anything "fundamentally unfair" 
about enforcing procedural default rules in 
cases devoid of any substantial claim that the 
alleged error undermined the accuracy of the 
guilt or sentencing determination.

Id. a t___, 106 S.Ct. at 2668.

Just as there is no special exception for capital 
cases in application of the procedural default doctrine, 
there is none for the harmless error doctrine. It is 
doubtless true that organized opponents of the death 
penalty would welcome the imposition of overly 
stringent procedures in capital cases, thereby increasing 
the states’ costs in carrying out their sentences. But 
any benefits derived from such procedures must be 
measured against the states’ valid interest in the



18

enforcement of their penal statutes and the societal 
cwsts entailed. For that reason, the courts have held in 
capital cases that the erroneous admission of evidence 
can be harmless. See, e.g., Andrade v. McCotter, 805
F.2d 1190, 1193-94 (5th Cir.), cert, denied,___U.S.____,
107 S.Ct. f>60 (1986); Evans u. McCotter, 790 F.2d 1232,
1240-41 (5th Cir.), cert, denied, ___ U.S. ___, 107 S.Ct.
327 (1986).

2. The harmless error doctrine 
applies to denials of counsel.

Satterwhite, relying on Holloway u. Arkansas, 435 
U.S. 475 (1978), also argues that he was denied counsel 
at a critical stage of the criminal proceedings against 
him and that such denial can never be harmless 
< Petitioner’s Brief, hereinafter "Pet. Br.," at 7-8). As the 
court, below correctly recognized, Holloway is limited to 
its particular facts (A. 99 n.5). In any event, there is 
ample authority for the proposition that the denial of 
counsel may be harmless. In Milton v. Wainwright, 407 
U.S. 371 (1972), the Court held that the admission of a 
confession obtained in violation of the defendant’s sixth 
amendment right to counsel was harmless beyond a 
reasonable doubt. Similarly, in both Moore v. Illinois, 
434 U.S. 220 (1977), and Coleman v. Alabama, 399 U.S. 
1 (1970), the Court found that the defendant was denied 
counsel at a critical stage and remanded for a 
determination whether the error was harmless.10

10 Sec also Meadows v. Kuhlman, 812 F.2d 72 (2d Cir. 
1987); Felder v. McCotter, 765 F.2d 1245 (5th Cir. 1985), cert.
denied sub nom. McCotter v. Felder, __ U .S.___, 106 S.Ct. 1523
(1986); Mcaler v .Jones, 741 F.2d 1451 (2d Cir. 1984); Robinson v. 
Percy, 738 F.2d 214 (7th Cir. 1984).

19

3. The harmless error doctrine 
applies to the punishment 
phase of capital trials.

Amicus argues, without citation of authority, that 
it is difficult to assess the harm vel non of evidence 
improperly admitted at the punishment phase of a 
capital trial because the jury’s sentencing decision is 
less structured than its determination of guilt and, 
therefore, "the capacity of an appellate court to assess 
what the jury would have done in the absence of the 
tainted evidence is correspondingly restricted." (Am. Br. 
47-48). For this reason, it is argued, "the harmlessness 
of constitutional error at petitioner’s capital sentencing 
proceeding should be determined solely by asking 
whether the evidence might have contributed to the 
jury’s decision." (Am. Br. 48).

Amicus argument is based on a faulty premise. 
There is no substance to the suggestion that a capital 
sentencing jury’s decision-making is so unbridled that 
the wrongful admission of evidence can never be deemed 
harmless. In Jurek v. Texas, 428 U.S. 262 (1976), the 
Court upheld the Texas capital sentencing scheme from 
a broad constitutional attack. In concluding that the 
Texas statute did not violate the eighth and fourteenth 
amendments, the Court adverted to the narrow focus 
allowed a capital jury in deciding whether to assess the 
death penalty.

Texas law essentially requires that one of five 
aggravating circumstances be found before a 
defendant can be found guilty of capital 
murder, and that in considering whether to 
impose a death sentence the jury may be 
asked to consider whatever evidence of



20

mitigating circumstances the defense can 
bring before it. It thus appears that, as in 
Georgia and Florida, the Texas capital- 
sentencing procedure guides and focuses the 
jury’s objective consideration of the 
particularized circumstances of the 
individual offender before it can impose a 
sentence of death.

Jurek, 428 U.S. at 272-73.

The jury’s discretion in deciding the punishment 
issues at a capital trial is no greater than at the guilt 
phase. Satterwhite cites no authority, and there is 
none, for the proposition that the harmless error 
doctrine is inapplicable, or should be more sparingly 
applied, to evidentiary errors at punishment. Further, 
although amicus asserts that prior to this case "no 
appellate court has ever found a Smith error harmless" 
(Am. Br. 49),“  in fact the admission of psychiatric 
testimony in violation of a defendant’s right to counsel 
may, in an appropriate case, be deemed harmless, as the 
Court has very recently stated. Buchanan v. Kentucky,
__ U.S. a t___ n.21, 107 S.Ct. at 2919 n.21. See Cape v.
Francis, 741 F.2d 1287, 1295 (11th Cir. 1984) 11

11 In Muniz v. Procunier, 760 F.2d 588 (5th Cir.), cert.
denied sub nom. McCotter v. Muniz, ___U.S. ___ , 106 S.Ct. 267
(1985), the Fifth Circuit reversed the district court, which had 
found a Smith error to be harmless. In Muniz, the district court 
found the error haimless because of the other damaging evidence 
on punishment even though there was no other psychiatric evidence 
introduced. On appeal, the state conceded that the district court’s 
opinion was incorrect under the law of the Fifth Circuit as 
expressed in White v. Estelle, 720 F.2d 415, 418 (5th Cir. 1983). As 
amicus notes (Am. Br. 50 n.13), since its decision in this case, the 
Court of Criminal Appeals has decided another case in which it
found Smith error to be harmless. Powell v. State,__ S.W.2d___ ,
No. 67,630 (Tex. Crim App. July 8, 1987).

21

(psychiatric testimony admitted in violation of fifth 
amendment privilege against self-incrimination found to 
be harmless).

B. The correct standard for deter­
mining harmless error is 
whether, absent the improperly 
admitted evidence, the jury 
nonetheless would have 
reached the same result.

Under Chapman v. California, the erroneous 
admission of evidence in violation of the Constitution 
does not mandate reversal of the conviction if it was 
harmless beyond a reasonable doubt. Chapman, 386 
U.S. at 24. The harmless error rule is founded on the 
realization that even the most scrupulously conducted 
trials are not likely to be unblemished:

[GJiven the myriad safeguards provided to 
assure a fair trial, and taking into account 
the reality of the human fallibility of the 
participants, there can be no such thing as an 
error-free, perfect trial, and . . . the 
Constitution does not require such a trial.

United States v. Hastings, 461 U.S. 499, 508-09 (1983). 
It is, therefore, "the duty of a reviewing court to consider 
the trial record as a whole and to ignore errors that are 
harmless, including most constitutional violations." 
United States v. Hastings, 461 U.S. at 509.

Amicus argues that the proper standard of review 
is "whether the evidence might have contributed to the 
jury’s decision." (Am. Br. 48). This proposed standard 
would effectively eviscerate the harmless error doctrine. 
Because any relevant evidence before the trier of fact



22

might have contributed to its decision, there would 
never be an occasion when, under amicus’ proposed rule, 
wrongfully admitted evidence could be deemed 
harmless. It is precisely this position which was 
rejected in Chapman.

We are urged by petitioners to hold that 
all federal constitutional errors, regardless of 
the facts and circumstances, must always be 
deemed harmful. Such a holding, as 
petitioners correctly point out, would require 
an automatic reversal of their convictions and 
make further discussion unnecessary. We 
decline to adopt any 6uch rule.

Chapman, 386 U.S. at 21-22; see also United States v.
L°ne, ___ U.S. ___, 106 S.Ct. 725, 730 (1986), quoting
Chapman. The proper inquiry is not whether the 
evidence "might" have affected the jury’s verdict, but 
whether, absent the evidence, the jury would 
nonetheless have reached the same verdict. Chapman, 
386 U.S. at 26.

C. There was overwhelming evidence 
to support the jury's affirmative 
answers to the punishment issues 
absent Dr. Grig son's testimony.

1. The jury could have 
reached the same verdict on 
punishment without consid­
ering any psychiatric testi­
mony.

There was overwhelming evidence before the jury 
to support its affirmative answers to the punishment 
issues even absent Dr. Origson’s testimony. Indeed, the 
brutal facts of the offense, standing alone, were

23

sufficient under Texas law to justify imposition of the 
death penalty. O’Bryan u. Estelle, 714 F.2d 365, 386 
(5th Cir. 1983), cert, denied sub nom. O’Bryan v. 
McKaskle, 465 U.S. 1 01 3 (1984).

Amicus argues that the evidence admitted at the 
guilt phase should not be considered on the punishment 
issues because (1) Sharon Bell was not a credible 
witness and (2) the jury might have convicted 
Satterwhite on the theory that Bell was the actual 
killer. This first argument must fail, for two reasons. 
First, it flies in the face of the well established rule that 
once a defendant is convicted of a crime, a reviewing 
court must consider all the evidence in the light most 
favorable to the prosecution. Jackson v. Virginia, 443 
U.S. 307, 319 (1979). Here, the jury obviously found 
Bell to be a credible witness, as evidenced by its verdict. 
Second, if the Court accepts this argument, it must 
review a cold record and substitute its own judgment as 
to the credibility of the witnesses, something which it 
cannot, and may not, do. See, e.g., Patton v. Yount, 467 
U.S. 1025, 1039-40 (1984); Maggio v. Fulford, 462 U.S. 
I l l ,  117-18(1983).

Amicus' other argument, that the jury might have 
believed that Bell was the actual killer, is equally 
unavailing. The court below specifically found that 
"there is no evidence that Bell did the actual killing." (A. 
92).i2 Thus, the jury could not have found Satterwhite

12 Ordinarily, it would have been reversible error under 
Texas law for the trial court to have instructed the jury on the law 
of parties where there was no evidence to support such a charge. In 
the case at bar, however, the Court of Criminal Appeals found that 
any error was waived by Satterwhite’s requested instructions, 
which were substantially the same as that given by the trial court 
(A. 94-95).



24

gujlty on this theory.13 However, even had it done so, 
there would be no constitutional barrier to imposition of
the death penalty. Tison v. Arizona, ___ U S ___ 107
S.Ct. 1076(1987).

In addition to the evidence admitted at the guilt 
stage, the jury was entitled to consider Satterwhite’s 
extensive criminal record and bad reputation, as well as 
Satterwhite’s failure to introduce any mitigating 
evidence, in deciding the punishment questions. Thus, 
even absent any psychiatric testimony for the state, the 
jury could easily have answered the punishment issues 
in the affirmative. See Barefoot v. Estelle, 463 U.S. 880, 
898 (1983) ("the jury may make up its mind about future 
dangerousness unaided by psychiatric testimony . . . .").

2. The court below  properly 
considered Dr. Schroeder’s 
testimony in determ ining that 
the admission o f  Dr. Grigson’s 
testimony was harmless.

Particularly damning, however, was Dr. 
Schroeder’s psychological assessment of Satterwhite, a 
diagnosis which paralleled that of Dr. Grigson. When 
her testimony is considered in conjunction with the 
other evidence offered by the state, there was 
overwhelming evidence on punishment. See United
States v. Lane,___U.S. a t ____, 106 S.Ct. at 732 & n.13
(overwhelming evidence of guilt is highly relevant to 
harmless error inquiry). Because the jury’s verdict 
surely would have been the same had Dr. Grigson not

13 ”'rhe assessment of prejudice (on a claim of ineffective 
assistance of counsel) should proceed on the assumption that the 
decisionmaker is reasonably, conscientiously and impartially 
applying the standards that govern the decision." Strickland v 
Washington, 466 U.S 668, 695 (1984).

25

testified, his testimony was harmless beyond a 
reasonable doubt. See Milton v. Wainwright, 407 U.S. 
371 (1972) and Robinson u. Percy, 738 F.2d 214 (7th Cir. 
1984) (admission of coerced confessions harmless beyond 
a reasonable doubt where other, properly admitted 
confessions were before the trier of fact). Based on all 
the evidence introduced at the guilt and punishment 
phases, with particular emphasis on Dr. Schroeder’s 
testimony, the court below found that Dr. Grigson’s 
testimony was harmless.

Dr. Schroeder’s testimony was very 
similar to Dr. Grigson’s concerning their 
conclusions about appellant. Both stated 
that appellant was a cunning individual, 
very evasive and very guarded. She added 
that appellant v,«,s a user of people, had an 
antisocial personality and an inability to 
feel empathy, and would be a continuing 
threat to society through his acts of 
criminal violence.

The jury also had the evidence adduced 
at the guilt stage of the trial for its con­
sideration in answering the special issues 
at the punishment phase. The evidence at 
the guilt stage was undisputed that 
appellant committed a brutal and senseless 
murder during the course of a robbery.
Even though he had obtained the money 
from the cash register and safe, he shot the 
deceased two or three times in the head at 
close range so that there would be no 
witnesses. The facts of this crime show 
that appellant’s conduct was calculated and 
remorseless.



26

We conclude that the properly ad­
mitted 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.

(A. 98-99) (citations omitted).

Satterwhite does not, because he cannot, argue 
that the court below applied an incorrect constitutional 
standard to the facts of his case. Instead, Satterwhite 
and the amicus advance a number of reasons why, in 
their view, the Texas appellate court wrongly concluded 
that Dr. Grigson’s testimony was harmless.

Amicus argues that Dr. Schroeder’s testimony "was 
admitted in patent violation of Estelle v. Smith and 
should never have reached the jury’s ears in the first 
place." (Am. Br. 55). It is far from clear that
Dr. Schroeder’s examination of Satterwhite was
conducted in violation of the fifth and sixth 
amendments. As the court below noted, "prior to 
examining appellant, Dr. Schroeder informed him of his 
rights as outlined in Miranda v. Arizona, supra. 
Additionally, the doctor obtained a release from 
appellant so as to allow her to release the information 
she obtained from the interview." (A. 98). Dr. Schroeder 
warned Satterwhite that, inter alia, the results of her 
examination were "going to be used in Court against 
him" (A. 46). Indeed, the warnings administered by 
Dr. Schroeder went beyond what is required by the 
Constitution. She told Satterwhite that "he had a right

27

to have a lawyer to be present during this" (A. 47), thus 
affording him a more extensive right to counsel than 
that required by Estelle v. Smith, 451 U.S. at 470 n.14.

In any event, the Court need not consider whether 
Dr. Schroeder examined Satterwhite in violation of 
Estelle v. Smith. The court below refused to consider 
this issue because Satterwhite did not object at trial to 
Dr. Schroeder’s testimony or complain on appeal of its 
admission (A. 98). The Court of Criminal Appeals’ 
refusal to consider the admissibility of Dr. Schroeder’s 
testimony was thus based on an adequate and 
independent state ground which precludes review by 
this Court. See, e.g., Michigan v. Tyler, 436 U.S. 499, 
512 n.7 (1978); Cardinale v. Louisiana, 394 U.S. 437, 
438 (1969).

Amicus argues that the Texas court’s imposition of 
its contemporaneous objection rule was incorrect "as a 
matter of state law" (Am. Br. 56), an issue which is 
outside the ambit of this Court’s certiorari jurisdiction. 
See, e.g., Smith u. Phillips, 455 U.S. 209, 221 (1982) 
("Federal courts hold no supervisory authority over state 
judicial proceedings and may intervene only to correct 
wrongs of constitutional dismension.”). Further, amicus 
misconstrues the decision of the court below. The Court 
of Criminal Appeals did not hold that Satterwhite’s 
claim was waived solely by his failure to interpose a 
trial objection. Satterwhite waived his claim by failing 
to object at trial and by failing to raise the issue on 
appeal (A. 98). Thus, the court below did nothing more 
than adhere to the time-honored rule that an appellate 
court will not review unassigned error.



s

In Smith v. Murray, the Court considered a factual 
situation remarkably similar to the case at bar. There, 
the habeas petitioner had objected at trial to the 
admission of psychiatric testimony but did not raise the 
matter as a ground on appeal. The Virginia state courts 
held that failure to raise the claim on appeal barred its 
consideration in any subsequent state proceeding, and 
this Court found that it was barred from federal habeas 
review under the procedural default doctrine of
Wainwright v. Sykes. Smith o. Murray, ___ a t ___ 106
S.Ct. at 2666.

Because the petitioner in Smith u. Murray did not 
establish either "cause" or "prejudice" so as to avoid the 
consequences of his procedural default, the Court 
undertook to determine whether the alleged error had 
resulted in a "fundamentally unjust incarceration," i.e., 
"the conviction of one who is actually innocent." Id. at
---- > 106 S.Ct. at 2668, quoting Murray v. Carrier, _
U-S- — . 106 S.Ct. 2639, 2650, 2654 (1986). In
concluding that it had not, the Court reasoned in terms 
particularly appropriate to the instant case:

There is no allegation that the testimony . . . 
was false or in any way misleading. In short, 
the alleged constitutional error neither 
precluded the development of true facts nor 
resulted in the admission of false ones. Thus, 
even assuming that, as a legal matter, [the] 
testimony should not have been presented to 
the jury, its admission did not serve to 
pervert the jury’s deliberations concerning 
the ultimate question whether in fact 
petitioner constituted a continuing threat to 
society.

28 29

Smith v. Murray, ___ U.S. at ___, 106 S.Ct. at 2668
(original emphasis).

Here, as in Smith v. Murray, there is no allegation 
that Dr. Schroeder’s testimony was false or misleading. 
Instead, her testimony was highly probative on the issue 
whether Satterwhite in fact constituted a continuing 
threat to society. Indeed, amicus implicitly
acknowledges the accuracy of Dr. Schroeder’s 
observations, at least to the extent that they suit his 
needs:

The defense on summation argued the 
theory that Sharon Bell, deemed a non- 
credible witness by Dr. Schroeder, was the 
individual who actually killed the
victim. . . . Defense counsel noted that the 
most gruesome testimony about the killing 
came from Sharon Bell, the prosecution’s 
star witness at the guilt trial, whose 
veracity had been questioned at the penalty 
trial by Dr. Schroeder.

(Am. Br. 31).

Because there is no allegation that Dr. Schroeder’s 
testimony was anything other than true and accurate, 
and because the state appellate court determined, as a 
matter of state procedural law, that it was properly 
before the trier of fact, it may be considered in 
determining whether Dr. Grigson’s testimony was 
harmless. Inasmuch as the two witnesses’ testimony 
was virtually identical, it follows as the night the day 
that any error in the admission of Dr. Grigson’s 
testimony was harmless beyond a reasonable doubt.



30

3. Dr. Grigson’s testimony was 
not prejudicial per se.

Amicus’ final argument is that Dr. Grigson’s 
testimony can not be deemed harmless because it "was 
far more thorough, complete and self-assured" than that 
of Dr. Schroeder (Am. Br. 57). Indeed, amicus argues, 
Dr. Grigson’s testimony can never be deemed harmless 
because of "the extraordinary skill with which it is 
delivered to the jury." (Am. Br. 59).

Amicus’ position is not well taken, either factually 
or legally. First, amicus does not demonstrate in what 
way Dr. Grigson’s testimony was more complete or how 
it was thereby more prejudicial. Second, as the Court 
has previously noted, an expert witness’s high degree of 
self-assurance may undermine, rather than bolster, his 
credibility. See Barefoot v. Estelle, 463 U.S. at 905 n .ll 
( The more certain a State’s expert is about his 
prediction, the easier it is for the defendant to impeach 
him."). It is mere self-serving speculation to assert that 
Satterwhite’s jury found Dr. Grigson’s testimony to be 
critical on the punishment issues.

Further, amicus again asks this Court to decide 
legal issues based on de novo credibility determinations 
made from a cold record. Because Dr. Grigson is a 
credible witness, the argument goes, his testimony 
necessarily was harmful. Here, however, as in Smith v. 
Murray, there is no indication that Dr. Grigson’s 
testimony was false or misleading. Just as there is no 
substance to the argument that the admission of 
psychiatric testimony can never be harmless error, there 
is no support for the proposition that the testimony of a 
particular expeit can never be deemed harmless.

31

Satterwhi*'1’0 cries out for application of the 
harmless error doctrine. The state proved the 
commission of a cold-blooded, gratuitous murder in the 
course of robbery to establish that Satterwhite was 
guilty of capital murder. At the punishment phase, the 
state introduced lay testimony to establish Satterwhite’s 
poor reputation, criminal record and proclivity for 
violence. The state also introduced the virtually 
identical testimony of two expert witnesses on the 
special punishment issues. Satterwhite produced no 
evidence whatsoever at either the guilt or punishment 
stages. On these facts, the admission of Dr. Grigson’s 
testimony was harmless beyond any doubt.

CONCLUSION

For the above reasons, the state requests that the 
judgment of the court below be affirmed.

Respectfully submitted,

JIM MATTOX 
Attorney General of Texas

MARY F. KELLER 
Executive Assistant Attorney 
General for Litigation

F. SCOTT McCOWN 
Assistant Attorney General 
Chief, Enforcement Division



tr
32

PAULA C. OFFENHAUSER 
Assistant Attorney General

^Counsel of Record CHARLES A. PALMER*
Assistant Attorney General

P.O. Box 12548 
Capitol Station 
Austin, Texas 78711 
(512) 463-2080

Attorneys for Respondent

!