By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Court of Criminal Appeals dismisses
petition in case dealing with admissibility of certification study testimony at
criminal penalty stage (00-2-23)
On May 10, 2000, the Texas Court of Criminal Appeals dismissed as
improvidently granted a petition for discretionary review that challenged the
Fifth Amendment violation holding of the Court of Appeals but not the Sixth
Amendment holding in a case in which a psychologist was permitted to testify
about appellant’s lack of remorse during a certification examination.
00-2-23. Cantu v. State, ___ S.W.3d ___, No. 1279-99, 2000 WL 567107, 2000
Tex.Crim.App.Lexis ___ (Tex.Crim.App. 5/10/00)[Texas Juvenile Law 137 (4th
Edition 1996)].
Facts: A Travis County jury found appellant, John Cantu, a juvenile, guilty of
the October 28, 1995, murder of Lydia Perez. See Tex. Pen.Code s 19.02(b)(2).
The jury assessed appellant's punishment at imprisonment for forty years.
On appeal, appellant argued that the trial court erred in admitting, at the
punishment stage of his trial, the testimony of a psychologist concerning his
future dangerousness. The record reflects that the testimony in question was
derived from a pretrial diagnostic study ordered by a juvenile court to
determine whether the case should be transferred to the district court. See Tex.
Fam.Code s 54.02(d). Appellant, citing Estelle v. Smith, 451 U.S. 454, 101 S.Ct.
1866, 68 L.Ed.2d 359 (1981), argued that admission of the testimony violated his
Fifth Amendment right against compelled self- incrimination and his Sixth
Amendment right to counsel. His Fifth Amendment right was violated, he argued,
because he was not warned immediately before the diagnostic study that anything
he said could be used against him at the punishment stage of a trial. His Sixth
Amendment right was violated, he argued, because his counsel was not warned
before the study that it would encompass the issue of his future dangerousness.
[FN1]
FN1. See Powell v. Texas, 492 U.S. 680, 109 S.Ct. 3146, 3148, 106 L.Ed.2d 551
(1989) (explaining that Estelle v. Smith held, among other things, that once a
capital defendant is formally charged, the Sixth Amendment right to counsel
precludes the state from subjecting him to a mental examination concerning his
future dangerousness without first notifying counsel that the examination will
encompass that issue).
Held: Petition dismissed as improvidently granted.
Opinion Text: The Third Court of Appeals accepted both of appellant's federal
constitutional claims, reversed the trial court's judgment with respect to his
punishment, and remanded the case for a new punishment hearing. Cantu v. State,
994 S.W.2d 721, 736-737 (Tex.App.--Austin 1999). The State Prosecuting Attorney
then filed a petition for discretionary review, which presented a single ground
for review, to wit:
"Is the testimony of a psychiatrist or psychologist concerning the demeanor
or lack of remorse of a juvenile during a pre-transfer diagnostic study
inadmissible at punishment unless the juvenile was warned prior to the
diagnostic study that his statements could be used against him at trial?"
(Emphasis added.) In the body of his petition, the S.P.A., citing our decision
in Ex parte Gardner, 959 S.W.2d 189 (Tex.Crim.App.1996), challenged the court of
appeals' Fifth Amendment holding by arguing that "the warnings given the
juvenile in this case were clearly sufficient." The S.P.A. did not
challenge, however, the court of appeals' Sixth Amendment holding, either in his
formal ground for review or in the body of his petition. Nevertheless, we
granted the S.P.A.'s petition to consider whether the court of appeals erred.
See Tex.R.App. Proc. 66.3(c).
After further review of the record, the S.P.A.'s petition, and the parties'
briefs, we conclude that our decision to grant review was improvident.
Accordingly, we dismiss the petition. See Tex.R.App. Proc. 69.3.