Satterwhite v TX Petitioners Brief

    NO. 86-6284

IN THE SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1987

JOHN T. SATTERWHITE

VS.

THE STATE OF TEXAS

ON WRIT OF CERTIORARI TO THE 
TEXAS COURT OF CRIMINAL APPEALS

PETITIONER’S BRIEF

RICHARD D. WOODS,
405 N. St. Mary's 
Suite 242, Atrium 
San Antonio, Texas 
(512) 225-5762 

STEPHEN TAKAS
126 Villita 
San Antonio, Texas 
(512) 225-5251 

Counsel for Petitioner

PETITION FOR CERTIORARI FILED JANUARY 30, 1987 
CERTIORARI GRANTED JUNE 1, 1987



QUESTION PRESENTED
PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, A FAIR 

AND IMPARTIAL TRAIL, EQUAL PROTECTION OF LAW, DUE PROCESS OF LAW 
AND HIS RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT 
GUARANTEED BY THE FIFTH, 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 THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE 
CONSTITUTION OF THE UNITED STATES.

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LIST OF PARTIES
The parties to this case are:

1. the Petitioner, and
2. the State of Texas.

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TABLE OF CONTENTS
PAGE

QUESTION PRESENTED..................................  2
LIST OF PARTIES.....................................  3
TABLE OF CONTENTS...................................  4
TABLE OF AUTHORITIES.................................. 5,6
OPINIONS BELOW......................................  7
JURISDICTION........................................  7
CONSTITUTIONAL PROVISIONS INVOLVED...................  8
STATEMENT OF THE CASE

PROCEEDING IN THE TRIAL COURT..................  8
APPELLATE PROCEEDINGS...........................  10

SUMMARY OF ARGUMENT..................................  11
ARGUMENT AND AUTHORITIES.............................  12

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Page
Battie v. Estelle, 655 Fed. 2d 692..............  17
(5th Cir. 1981)
Chapman v. California, 386 U.S. 18, 23,......... 11,13,14,16,17,18
87 S.Ct. 824, 827 17 L.Ed. 2nd 705 (1967)
Clark v. State, 627 S.W. 2d 693, 697-698 ........ 17
(Tex. Cr. App. 1981)
Cortez v. State, 571 S.W. 2d 308 (Tex. Cr. App.). 17
Estelle v. Smith, 451 U.S. 454 (1981)........... 11
451 U.S. 466-471
Geders v. United States, 425 U.S. 80............  15
96 S.Ct. 1330
Gideon v. Wainwright, 372 U.S...................  15
335, 83 S.Ct. 792
Glasser v. United States, 315 U.S...............  15
60,76,62 S.Ct. 457, 467, 86 L.Ed. 680 (1941)
Green v. Estelle, 706 Fed. 2d 148 (5th Cir.).... 17
712 Fed. 2d 995, 996 (1983)
Hamilton v. Alabama, 368 U.S....................  15
52, 82, S.Ct. 157, 7th L.Ed., 2d 114 (1961)
Herring v. New York, 422 U.S....................  14
853, 95 S.Ct. 2550, 45 L.Ed. 2d, 593 (1975)
Holloway v. Arkansas, 435 U.S...................  11,13,14,15
475, 98 S.Ct. 1173, 55 L.Ed. 2d, 426 (1978)
McKeldin v. Rhodes, 631 Fed. 2d 458.............  13
(6th Cir. 1980)
Rushen v. Spain, 664 U.S. 114, 104 S.Ct.........  15
453, 78 L.Ed. 2d, 267 (1983)
Satterwhite v. The State of Texas, 726 S.W...... 7
2d 81, (Tex. Cr. App. 1986)
Smith v. Estelle, 451, U.S. 454.................  12
101 S.Ct. 866, 68 L.Ed. 2d 359 (1981)
Smith v. Murray, 477 U.S. _______, 91 L.Ed......  14
2nd 434, 106 Supreme Court ________, [85-5487]

TABLE OF AUTHORITIES

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United States v. Decoster, 624 Fed..............  16
2d 201
United States v. King, 664 Fed..................  15
2d 1171 (7th Cir. 1981)
United States v. Velasquez, 772 Fed. 2d 1348.... 16
(7th Cir. 1985)
Walberg v. Israel, 766 Fed. 2d 1171.-...........  16
(7th Cir. 1985)
White v. Estelle, 720 Fed. 2d 415...............  17
(5th Cir. 1983)
White v. Maryland, 373 U.S. 59, 83..............  15
S.Ct. 1050, 10 L.Ed. 2d 193 (1963)

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NO. 86-6284

IN THE SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1987

JOHN T. SATTERWHITE, PETITIONER ' 
VS.

THE STATE OF TEXAS, RESPONDENT

PETITION FOR WRIT OF CERTIORARI 
TO THE COURT OF CRIMINAL APPEALS 

OF THE STATE OF TEXAS

BRIEF FOR THE PETITIONER

OPINIONS BELOW
The opinion of the Court of Criminal Appeals is reported at 

John T. Satterwhite v. The State of Texas, 726 S.W. 2d 81, (Tex. 
Cr. App. 1986).

JURISDICTION
The judgment sought to be reviewed is that of the Court of 

Criminal Appeals in John T. Satterwhite v. The State of Texas, 726 
S.W. 2d 81, (Tex. Cr. App. 1986). On December 3, 1986 the Court 
of Criminal Appeals of Texas by written opinion affirmed 
Petitioner's conviction and denied motion for rehearing without 
opinion. On January 30, 1987, a petition for writ of certiorari 
was filed asking for a stay of execution which was granted pending 
review. The writ of certiorari was granted on June 1, 1987 to

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review the final judgment of the Texas Court of Criminal Appeals 
limited to the first question presented.

CONSTITUTIONAL PROVISIONS INVOLVED
This case involves the Fifth, Sixth, Eight, and Fourteenth 

Amendments to the United States Constitution.

STATEMENT OF THE CASE 
PROCEEDINGS IN THE TRIAL COURT

On March 12, 1979, Mary Davis, a manager in a convenience
store in San Antonio, Texas, was murdered by gunshot wounds during 
the course of a robbery.

JOHN T. SATTERWHITE was arrested and charged with Capital 
Murder on March 15, 1979. (J.A.-6) The next day, on March 16,
1979, the Criminal District Attorney of Bexar County, Texas, filed 
with the Presiding District Judge a Motion for Psychological 
Examination with no notice to the Petitioner nor any other 
individual, which Motion was granted as reflected by the Court’s 
Order. (J.A.-5) Thereafter, on April 10, 1979, the Court
appointed Counsel for the Petitioner and notified Counsel of the 
arraignment date set for April 13, 1979. (J.A.-7,8,9,10)
Subsequently and at a time when the District Attorney knew that 
the Petitioner had appointed Counsel, a Motion for Psychiatric 
Examination was filed with the Court with, again, no notice or 
Certificate of Service tendered to Counsel which Motion was 
granted by the Honorable Preston H. Dial, Jr., Judge Presiding, on 
April 18, 1979. (J.A.-12,13,14)

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On May 29, 1979, Counsel filed several pretrial motions 
including but not limited to a Motion to Suppress the testimony of 
any and all psychiatrists, psychologists, or neurologists who had 
been appointed or who had examined the Petitioner since the time 
of his arrest. {J.A.-21,22,23) Inclusive of such pretrial motions 
was a Motion in Limine to restrict any statements made by the 
Petitioner while under arrest that do not conform to the 
requirements of Article 38.22, Texas Code of Criminal Procedure, 
on August 24, 1979. (J.A.-28,29)

At Petitioner's pretrial hearing, the Court granted relief in 
the respect of allowing for a hearing to be held outside the 
presence of the jury. (J.A.-44,45)

Subsequent to the Petitioner's conviction of Capital Murder 
by a jury, and during the punishment phase of his trial, one 
punishment witness called by the State, Dr. Betty Lou Schroeder, 
testified to the jury about her findings based upon her interview 
and testing of the Petitioner. As a predicate to such interview, 
Dr. Schroeder testified that she gave "Miranda warnings" to the 
Petitioner among which she was asked if she had given a caveat 
that he had a right to have an attorney present during the 
interview. Although Dr. Schroeder states that they discussed such 
issues she does not say that he waived his right to have counsel 
present. (J.A.-47) The Court, based upon the complaints made by 
Counsel during a pretrial motions and hearings, ordered that the 
witness may testify but she was not to relate anything that 
Petitioner might have told her. (J.A.-48) Despite such 
admonition, the witness did in fact testify and commented on

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things that she was informed by the Petitioner which, despite 
objections by Counsel as being in violation of the Court Order, 
the Court sustained such objection but would not grant any 
additional relief with regard to mistrial. (J.A.-55) Dr. 
Schroeder was further asked by the Prosecutor based upon her 
interview and other expertise qualifications, what opinion she had 
as to the the future dangerousness of the Petitioner to which she 
stated that he did. (J.A.-56)

The States' final witness on the punishment phase was Dr. 
James Grigson who interviewed the Petitioner subsequent to 
appointment of Counsel without Counsel's knowledge. Dr. Grigson 
further testified that he also had "warned" the Petitioner and 
stated further that whatever Petitioner told him could be harmful 
to him or it could be helpful. (J.A.-60,61) The Court, again 
despite objections of Counsel, allowed the witness to testify but 
not to relate to the jury anything that may have been spoken to 
him. (J.A.-61) Again, during Dr. Grigson's testimony, he was 
asked the threshold question of future dangerousness to which his 
opinion was that the Petitioner would be in addition to a 
comparison on a scale from one to ten that he would be a "ten 
plus" . (J.A.-73)

At the close of the evidence, the jury deliberated and 
answered the special issues pursuant to Section 37.071 of the 
Texas Code of Criminal Procedure and Petitioner was sentenced to 
death pursuant to Section 19.03 of the Texas Penal Code.

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APPELLATE PROCEEDINGS
Petitioner's conviction was affirmed by the Court of Criminal 

Appeals of Texas on September 17, 1986, with rehearing denied on 
December 3, 1986.

SUMMARY OF ARGUMENT
The Petitioner's Fifth, Sixth and Fourteenth Amendments 

rights under Estelle v. Smith, 451 U.S. 454 (1981), were violated 
when Doctors Betty Lou Schroeder and James Grigson testified for 
the prosecution at the penalty phase on the basis of a pretrial 
interview arranged by the prosecution but conducted without first 
advising Counsel and advising Petitioner that he had a right to 
remain silent and to obtain an affirmative understanding of his 
right to Counsel; that he anything he said might be used against 
him at the penalty phase of a capital trial be for submitting to 
the interviews.

The Texas Court of Criminal Appeals further erred in 
determining the Smith error may be deemed harmless as this Court 
in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed. 2d 
426 ( 1978) and Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 
824, 827, 17 L.Ed. 2d 705 (1967) and other Circuit Courts and the 
Texas Court of Criminal Appeals have explicitly rejected such 
claims in prior cases in applying the standard of "beyond a 
reasonable doubt".

ARGUMENT AND AUTHORITIES
Despite the Texas Court's majority opinion, Petitioner moved

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to exclude all testimony of such witnesses on issue of expert 
testimony as it relates to future conduct. During the testimony 
of DR. SCHROEDER and DR. GRIGSON, objections were made as the same 
relates to both expert witnesses which motions was overruled by 
the trial Court.

As the dissenting opinion filed by Judge Clinton reflects, 
Dr. James P. Grigson, is well known to every practitioner in 
capital cases. It is this very same "expert witness" that has 
testified in several punishment phases of criminal proceedings in 
capital cases which has been noted in Smith v. Estelle, 451 U.S. 
454, 101 S.Ct. 866, 68 L.Ed. 2d 359 (1981). The majority opinion, 
in review of the evidence, did conclude that the psychiatrist's 

.opinion was improperly admitted, however, that such was harmless 
error. In the Court of Criminal Appeals majority's reasoning 
justifying such conclusion, it states that a psychologist employed 
by the County is not subject to the same scrutiny as a 
psychiatrist hired from outside the municipal boundary of the City 
of San Antonio. The majority opinion rationalizes that unlike 
Smith v. Estelle, supra, other evidence was admitted during the 
punishment phase of Petitioner's trial. One "rationalized 
syllogism" is that the Petitioner did not object to Dr. 
Schroeder's testimony who essentially testified to the
Petitioner's future dangerousness. Contrary to such language, 
Counsel on numerous occasions objected to the witnesses' testimony 
(J.A.-61) - especially as to the witnesses' violation of the 
Court's Order of restricted access to the Petitioner. When 
inquired of why she disobeyed such an Order, Dr. Schroeder

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testified that although she assumed an attorney was appointed to 
represent the Petitioner, she did not attempt to talk to any 
attorneys regarding her examination. (J.A.-57). Despite her 
knowledge that the Petitioner had counsel, she undertook to elicit 
evidentiary information from the Petitioner. The Texas Court of 
Criminal Appeals has seen fit to render the same harmless error 
beyond a reasonable doubt.

While the Texas Court of Criminal Appeals states that the 
testimony of Dr. Schroeder is "uncontested", it appears complete 
disregard is made of the complaints heard in the pretrial Motion 
to Suppress and Motion in Limine in addition to the very basis for 
which such an "expert" can formulate an opinion as to the future 
dangerousness of an individual.

This Court in Holloway v. Arkansas, 435, U.S. 475, 98 S.Ct. 
1173, 55 L.Ed. 2d 426 (1978), stated that reversal is automatic
when a Defendant is deprived of assistance of counsel (a critical 
stage in, at least the prosecution of a capital offense). See 
McKeldin v. Rhodes, 631 Fed. 2d 458 (6th Cir., 1980). In a 
further in-depth review of the majority opinion, this Court in 
Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed. 2d 705 
(1967), stated that before considering harmless error, the Court 
must be satisfied beyond a reasonable doubt, that the error did 
not contribute to the defendant's conviction and/or punishment 
meted. Also if, in the course of the prosecution in the trial, 
continuous and repeated references to such error is made, and 
inferences drawn therefrom, such error cannot constitute harmless 
error.

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In the instant case, it is readily apparent that Dr. 
Grigson's testimony was quite significant.

Unlike the factual situation which occurred in Smith v.
Murray, 477 U. S. _______, 91 L.Ed. 2nd 434, 106 S. Ct. ________ ,
[85-5487], the Smith decision dealing with Dr. Grigson's testimony 
was "the Law of the Land" to which direct reference was made in 
the state court appeal. Inclusive in such complaint is the 
testimony of Dr. Schroeder as the issue bares to denial of right 
to counsel from the inception of the adversary proceedings which 
occurred on March 15, 1979. In view of the absence of specific
accusatory recognition of Dr. Schroeder's testimony in the state 
appeal coupled with the Smith decision at hand, such cannot be 
considered a "deliberate tactical decision". Admission of any 
expert testimony the basis of which was made without benefit of 
the accused's counsel will result in a fundamental miscarriage of 
justice by the violation of the accused's Sixth Amendment rights.

The cases cited herein are concerned not with the ineffective 
assistance of counsel, but rather, in various settings, with a 
denial of counsel altogether. The Petitioner, has his right 
inherently and/or otherwise, to be heard and represented by 
counsel.

This Court, in Herring v. New York, 422 U.S. 853, 95 S.Ct. 
2550, 45 L.Ed. 2d 593 ( 1975), and in Holloway v. Arkansas, 435 
U.S. 475, 98 S.Ct. 1173, 55 L.Ed. 2d 426 ( 1978), stated, citing 
other authorities, that complete denial of counsel to a Defendant 
could never give rise to harmless error. See Chapman v.
California, 386 U.S. 18, 23, N. 8, 87 S.Ct. 824, 827, 17 L.Ed. 2d

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705 (1967) - especially to the extent of the "beyond a reasonable 
doubt" standard.

The Sixth Amendment guarantee to effective assistance of 
counsel is so fundamental that its deprivation will mandate 
reversal of a conviction even absent a showing that the resulting 
prejudice affected the outcome of the case. See Glasser v. United 
States, 315 U.S. 60, 76, 62, S.Ct. 457, 467, 86 L.Ed. 680 (1941). 
United States v. King, 664 Fed. 2d 1171 (7th Cir. 1981).

Considering that the above question is at least to be one of 
a Federal nature under the mandate of Rushen v. Spain, 664 U.S. 
114, 104 S.Ct. 453, 78 L.Ed. 2d, 267 (1983), it is plainly clear 
that under the holding of Holloway v. Arkansas, supra, reversal is 
automatic where is a Defendant is deprived of assistance of 
counsel "either through the prosecution or during a critical stage 
in, at least, the prosecution of a Capital offense" citing three 
capital cases of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 
L.Ed., 2d 799 (1963); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 
157, 7th L.Ed., 2d 114 (1961); White v. Maryland, 373 U.S. 59, 83 
S.Ct. 1050, 10 L.Ed. 2d 193 (1963).

The Texas Court’s majority opinion in a footnote tries to 
distinguish Holloway v. Arkansas, supra. What is overlooked, 
however, is that a Court order presented by the prosecutors 
representing the State of Texas for these "experts" to examine the 
Defendant is tanamount to state action, which without disclosures 
to such counsel, is effectively a denial of counsel through State 
action and interference.

In Geders v. United States, 425 U.S. 80, 96 S.Ct 1330, 47

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L. Ed . 3d 592 ( 1976), counsel was prohibited by the trial judge
from communicating with his client during overnight recess; the 
Court there held that the defendant's rights to be heard by 
counsel had been abridged. The right to have counsel provided is 
so fundamental that its' violation of that Constitutional right 
mandates reversal even if no prejudice is shown and even if 
TW.ndant was clearly guilty. united States v. Decoster^, 624 
Fed. 2d 201. see states v. Velasquez., 772 Fed. 2d
1348 (7th Cir. 1985) See also Walberq v. Israel^766 Fed. 2d 1171

(7th Cir. 1985).
n . , W  rhanman v. Cal if o r n i a 386 U.S. 18, 87 S.Ct. 824, 17

L.Ed. 2d 705 (1967), if the Court is satisfied beyond a reasonable 
doubt that the error did not contribute to the Defendant 
conviction (or in this case the Defendant's death penalty), such 
error would be harmless. However, as in .Chapman^ continuous and 
repeated references were made to Chapman.'s, failure to testify m  
that the inferences drawn therefrom did not constitute harmless 
error. In the instant case, however, it is without question that 
the prosecution argued to the jury reminding them that Dr. Grigson 
is the "Dallas Psychiatrist and Medical Doctor as compared to a 
mere psychologist employed by Bexar County and then recounted that 
Dr. Grigson" tells you that on a range from one to ten [petitioner 
is] a ten plus" followed with an iteration of terms Dr. Grigson 
can "explicate so expertly to jurors". As stated in the 
dissenting opinion, "one may reasonably believe the State's case 
during the punishment hearing" could have been significantly less 
persuasive had the evidence been excluded". It is without

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question that such argument falls within the very concise
reasoning that was the concern the Chapman Court had before it
when rendering this decision 19 years ago. It is without question
that there was a very probable impact to the jury of the
erroneously admitted evidence in the minds of such factfinders
during the punishment phase of Appellant's trial.

In Battie v. Estelle, 655 Fed. 2d 692 ( 5th Cir. 1981) the
State called eleven witnesses to testify concerning the
Defendant's bad reputation and two more who recounted specific
acts of violence made by him (the same as in the SATTERWHITE
trial) yet introduction of psychological testimony in violation of
Smith was not deemed harmless by the Fifth Circuit.

In White v. Estelle, 720 Fed. 2d 415 (5th Cir. 1983) the
Fifth Circuit expressly rejected the prosecution claim that a
Smith error was harmless. The Court held:

"We cannot concluded that evidence admitted on critical 
issue in the sentencing phase of a capital case, in 
violation of White's constitutional rights, constitutes 
a harmless error beyond a reasonable doubt."

720 Fed. 2d 418. Similarly, in Green v. Estelle, 706 Fed. 2d 148
rehearing denied with opinion, 712 Fed 2d 995, the Court of
Appeals granted Smith relief despite a strenuous harmless error
argument by the Texas Attorney General.

Indeed, under Texas law, the erroneous admission of far less
damaging evidence at the penalty phase of a Capital trial has been
held prejudicial and reversible. See Cortez v. State, 571 S.W. 2d
308 (Tex. Cr. App.); Clark v. State, 627 S.W. 2d 693, 697-698
(Tex. Cr. App. 1981).

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The reasoning underlying the above decisions is obvious and 
compelling. The expert testimony deemed inadmissible in Smith is 
not merely one more item of evidence to be weighed against the 
other, properly admitted evidence, in reaching a harmless error 
determination. Such expert testimony speaks directly, and with 
the appearance of weighty scientific authority, to the very 
question of probable future dangerousness posed by Article 37.071 
(b)(2) of the Texas Code of Criminal Procedure. It does not 
simply provide the jury with evidence to apply in searching for an 
answer to the statuary sentencing questions. Instead, it purports 
to answer the question itself, as a matter of science no less. 
This is the very reason the Smith errors cannot be deemed harmless 
beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 
(1967).

CONCLUSION
To send Petitioner to his death on the basis of his 

statements to Doctors Schroeder and Grigson, unwittingly made 
without the guidance of counsel, and without the slightest 
awareness that he was assisting the State's effort to take his 
life, simply cannot be squared with these concepts. Accordingly, 
the judgment of the District Court and Texas Court of Criminal

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Suite 242 - Atrium
San Antonio, Texas 78205

SXti.PHEN^P. TAKAS, JR.
Att/s/rney at Law
126 Villita Street
San Antonio, Texas 78205
(512) 225-5251
State Bar No. 19613000
ATTORNEYS FOR PETITIONER 

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the 

foregoing Petitioner's Brief has been mailed to the Attorney 
General of the State of Texas, JIM MATTOX, and PAULA C. 
OFFENHAUSER, Assistant Attorney General, P.O. Box 12548, Capitol 
Station, Austin, Texas 78711 this the f day July, 1987,

T ~ r -

RTCHARD^D. WOODS 
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the 
foregoing Petitioner's Brief has been mailed to JOHN T. 
SATTERWHITE, Texas Department of Corrections, Huntsville, Texas, 
this the rJ( day of July, 1987.

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