Womack, J., filed a dissenting opinion joined by Price, Holland, and Johnson, JJ.

In Satterwhite v. Texas, 486 U.S. 249, 258–59 (1988), the Court held that the admission, at the punishment stage of a capital trial, of evidence obtained in violation of a defendant’s Sixth Amendment right to counsel may be harmless error if a court finds:

that the erroneous admission of [the tainted] testimony was harmless beyond a reasonable doubt. A Texas court can sentence a defendant to death only if the prosecution convinces the jury, beyond a reasonable doubt, that “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” The Court of Criminal Appeals thought that the admission of [the tainted] testimony on this critical issue was harmless because “the properly admitted evidence was such that the minds of an average jury would have found the State’s case (on future dangerousness) sufficient ... even if [the] testimony had not been admitted.” The question, however, is not whether the legally admitted evidence was sufficient to support the death sentence, which we assume it was, but rather, whether the State has proved “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman [v. California], 386 U.S. [18], at 24 [(1967)].¹

Satterwhite murdered a woman during a robbery. The error in his trial was the admission of the testimony of a psychiatrist who had violated Satterwhite’s right to counsel by examining him in jail. Using that information, the psychiatrist testified that, in his opinion, Satterwhite presented a continuing threat to society through acts of criminal violence.² The Court evaluated the error in the context of the record.

The evidence introduced at sentencing showed that, in addition to his conviction in this case, Satterwhite had four prior convictions of crimes ranging from aggravated assault to armed robbery. Eight police officers testified that Satterwhite’s reputation for being a peaceful and law-abiding citizen was bad, and Satterwhite’s mother’s former husband testified that Satterwhite once shot him during an argument. The State also introduced the testimony of Bexar County psychologist Betty Lou Schroeder. Dr. Schroeder testified that she found Satterwhite to be a “cunning individual” and a “user of people,” with an inability to feel empathy or guilt. She testified that in her opinion, Satterwhite would be a continuing threat to society through acts of criminal violence.³

The Court noted that the psychiatrist was the State’s final witness, that his illegally- obtained testimony stood out both because of his qualifications as a medical doctor specializing in psychiatry and because of the powerful content of his message, and that the prosecutor highlighted those points in his closing argument:

“Doctor James Grigson, Dallas psychiatrist and medical doctor. And he tells you that on a range from 1 to 10 he’s ten plus. Severe sociopath. Extremely dangerous. A continuing threat to our society. Can it be cured? Well, it’s not a disease. It’s not an illness. That’s his personality. That’s John T. Satterwhite.”⁴

Having reviewed the evidence in the case, the Court found it impossible to say beyond a reasonable doubt that the testimony did not influence the sentencing jury.⁵

Our review of the error in the case now before us should be modeled on that in the Satterwhite opinion. The appellant murdered his estranged wife, her roommate, and three men, some of whom he thought she was having sexual relations with. At the punishment stage there was testimony from a jail inmate that the appellant wanted to have his ex-wife and her husband killed. There was evidence of “threats of violence that were made by appellant to a variety of individuals over a number of years.”⁶ And the State introduced illegally-obtained evidence, which included tape-recorded conversations, that the appellant had solicited an undercover investigator to kill four witnesses in the trial, as well as a jail inmate. The illegal evidence was important. First it corroborated the admissible testimony of the inmate, who otherwise could have been easily disbelieved. As the State said in closing argument, “That individual, Philip Jones, you may also discount him if you wish. If you don’t want to believe anything he says, that’s fine. Because the tapes are there.” Second, the evidence about soliciting the murder of witnesses was of a different quality from all the other evidence in the trial, which was the appellant’s crimes and misconduct that were committed in anger against acquaintances. The recordings allowed the State to say in final argument to the jury, “The man is a stone cold killer.”

The illegally-obtained evidence figured prominently in the arguments to the jury. The State told the jury in opening argument that the “evidence, especially that tape, [was] very damning towards the defendant,” and urged them to listen to the tape recordings “over and over and over.” After reviewing the facts of the capital murder, the prosecutor reminded the jury that during the trial the appellant was “plotting the killings of five more people. It’s unbelievable. But it’s true. It’s true, because you can hear it on tape. And tapes don’t lie.” The defense attorneys’ arguments occupy 44 pages in the record, 13 of which were in response to the illegal evidence. In closing argument, the State again told the jury to listen to the tapes. The argument quoted the tapes, and used them to characterize the appellant as a “stone cold killer.”

I find it impossible to say beyond a reasonable doubt that the testimony did not influence the sentencing jury. I respectfully dissent from the judgment to affirm the sentence of death.

En banc.
Delivered September 20, 2000.
¹Other citations omitted.
²Satterwhite, 486 U.S. at 253.
³Id. at 259 (footnote omitted).
⁴Id. at 259–60.
⁵Id. at 260.
⁶Ante at 21 n.16.