Jessie Ray Jones, Petitioner-appellant, v. O.l. Mccotter, Director, Texas Department of Corrections,respondent-appellee, 767 F.2d 101 (5th Cir. 1985)

On January 15, 1974, William Cain was murdered in a convenience store robbery in Dallas, Texas. Later that year, Jessie Ray Jones, the petitioner herein, was tried, convicted, and sentenced to death for capital murder arising out of Cain's death.¹  On appeal, the Texas Court of Criminal Appeals affirmed. Jones v. State, 568 S.W.2d 847 (Tex.Crim.App.1978). The Supreme Court of the United States denied certiorari. Jones v. Texas, 439 U.S. 959, 99 S. Ct. 363, 58 L. Ed. 2d 352 (1978). Jones' subsequent petitions for writ of habeas corpus were denied both in the state courts and in the federal district court. On appeal to this Court, Jones argues that the admission of psychiatric testimony at the punishment stage of his state court trial violated his rights under the Fifth, Sixth, and Fourteenth Amendments as interpreted in Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981). See also Battie v. Estelle, 655 F.2d 692 (5th Cir. 1981); Gholson v. Estelle, 675 F.2d 734 (5th Cir. 1982). Finding Jones' contention and the State's response controlled by Smith and this Court's recent decision in Muniz v. Procunier, 760 F.2d 588 (5th Cir. 1985), we hold that Jones' Fifth Amendment rights, as enunciated in Smith, were indeed violated by the admission of psychiatric testimony at the punishment stage. The judgment of the district court denying the writ of habeas corpus is reversed and the case is remanded for relief consistent with this opinion.

Jones was arrested on February 6, 1974. At the punishment stage of his trial,²  the prosecution introduced the testimony of Dr. James Grigson and Dr. John Holbrook. Both Drs. Grigson and Holbrook examined Jones twice before the punishment stage of the trial,³  and both concluded from these examinations and Jones' history that he was a sociopath and therefore would continue to be a future danger to society. See Tex.Code Crim.Proc.Ann. art. 37.071(b) (2) (Vernon 1981) (jury in capital murder case must determine in order to impose the death sentence "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society"). At trial, the state court trial judge apparently recognized that admission of the psychiatrists' testimony endangered Jones' Fifth Amendment rights against self-incrimination. Accordingly, the trial judge, in response to a defense motion to suppress entirely both doctors' testimony on Fifth Amendment grounds, suppressed only that testimony from the psychiatrists (1) as to the contents of any conversation that they had with Jones while he was in custody and (2) any opinions by the psychiatrists based on a conversation regarding the facts of the case against Jones. State Trial Record Vol. VIII at 2777-78. As a result of the jury's findings--including an affirmative finding that Jones would probably commit future criminal acts of violence that would constitute continuing threats to society--Jones was sentenced to death. Jones presented no evidence at either the guilt or punishment determination stages of the trial.

In Estelle v. Smith, the Supreme Court, affirming this Court, held that "both the Fifth and Sixth Amendments are violated by a doctor's testimony on future dangerousness of the defendant when the opinion is based on questioning conducted without a prior warning on the Fifth Amendment privilege and without opportunity for advice of counsel." Muniz, 760 F.2d at 589.⁴  While the federal district court held that Estelle v. Smith does not apply to the instant case on the basis that the doctors' testimony was not based on facts communicated to them by Jones, the State has since abandoned its argument that the communications between the doctors and Jones were non-testimonial in nature. See Gholson, supra. The State now rests solely on its argument that Estelle v. Smith, which was decided after the punishment stage in Jones' trial, should not be applied retroactively. This contention, however, has been rejected both by this Court, see Muniz, and by the Texas Court of Criminal Appeals, see Ex parte Chambers, 688 S.W.2d 483 (Tex.Crim.App.1984) (en banc), petition for cert. filed, --- U.S. ----, --- S. Ct. ---, --- L. Ed. 2d--. (June 4, 1985).⁵  Accordingly, we are bound by Muniz and must reject the State's response and hold that Jones' Fifth Amendment rights as enunciated in Smith were violated by the introduction of the psychiatric testimony.⁶ 

The judgment of the district court is reversed. The case is remanded to that court with directions to grant relief in accordance with this opinion.

REVERSED AND REMANDED.