EX PARTE ARTHUR LEE BURTON (Dissenting Statement)
IN THE COURT OF CRIMINAL APPEALS
EX PARTE ARTHUR LEE BURTON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 760321B FROM THE 338th DISTRICT COURT
OF HARRIS COUNTY
Johnson, J., filed a dissenting statement.
D I S S E N T I N G S T A T E M E N T
At the 2002 hearing, Guyton testified that "he interviewed new prison inmates to compile a social and criminal history for classification purposes, and that the inmates were asked about their criminal history, drug and alcohol history, religion, education, military background, and 'various other things' to decide classification, placement, individual treatment and/or counseling . . .." State's brief at 13-14. He later testified that "a hypothetical defendant would go to general population if he received a life sentence for the offense of capital murder . . .." The inference, of course, is that defendants who received a death sentence do not go into general population; they go to death row. Guyton also "thoroughly explained the prison classification system, including housing and contact with others." State's Brief at 14.
The purpose of the interview system appears to be to provide sufficient information to the prison system to determine appropriate housing-no Crips in with Bloods, no young first timers in with sex offenders-and appropriate treatment regimens for problems such as drug and alcohol addiction. Housing choices dictate the level of contact with other inmates, another factor mentioned by Guyton.
Given these stated purposes for the "classification interview," Guyton had no reason at all to interview applicant. Death-row inmates are housed in cells that accommodate one person. They have no contact with other inmates, on or off death row, except in special circumstances such as medical visits. Rehabilitation before release is not a concern, and the prison system probably does not use scarce rehabilitation services on condemned prisoners. A criminal history-at least as to prior and current convictions-is readily available to the prison system through means other than self-reporting by the inmate, and such a history is likely more accurate and complete than self-reporting. Almost none of the information sought in such a "classification" interview is relevant when the classification of the inmate has already been determined by his offense.
The parties have not challenged Guyton's status as a state agent, probably because, under our case law, he is. We do not need to re-examine that issue sua sponte. Estelle v. State, 451 U.S. 454 (1981), is on point; unwarned statements made by an inmate during a court-ordered psychological examination were admitted at the penalty phase on the issue of future dangerousness. The United States Supreme Court held that those statements were inadmissible. Applicant made statements during a prison-system-ordered interrogation, and his statements were used against him during in his second sentencing hearing on the issue of future dangerousness. Under Estelle, applicant's statements to Guyton are inadmissible.
Wilkerson v. State, 173 S.W.3d 521 (Tex.Crim.App 2005), does not change the equation. A Child Protective Services caseworker who visits an inmate in jail for the purpose of finding suitable placements for the inmate's children is a far cry from a prison employee who wants to know why the crime for which the inmate is serving time was committed. No one has offered a rationale as to why such a question is appropriate or relevant to a determination of the housing and rehabilitation of a death-row inmate.
In these circumstances, a remand does not significantly assist this Court is resolving the issues before it. I respectfully dissent.
Filed: June 18, 2008
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