Revised September 17, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-41438 _____________________

ROBERT EXCELL WHITE,

Petitioner-Appellant,

v.

GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas _________________________________________________________________ August 26, 1998 Before KING, DAVIS, and WIENER, Circuit Judges.

KING, Circuit Judge:

Petitioner-appellant Robert Excell White, a Texas death row

inmate convicted of capital murder, appeals the district court’s

denial of his petition for a writ of habeas corpus. White

contends that the district court erred in denying his petition

because the trial court violated the mandate of Ake v. Oklahoma,

(1985), by denying his motion for the appointment of

a psychiatrist to aid him during the sentencing phase of his

trial, thereby denying him due process of law and rendering the

assistance provided by his trial counsel unconstitutionally ineffective. Because we conclude that any Ake error that may

have occurred in this case was harmless, we affirm.

I. FACTUAL BACKGROUND

On May 10, 1974, petitioner-appellant Robert Excell White,

who at the time lived in Waco, Texas, began drinking alcohol at a

local tavern around noon and continued until 1:00 a.m. He then

took his wife home and proceeded to the home of Roy Perryman

where he continued to drink. After drinking and talking with

Perryman for a while, White pulled a knife that Perryman had

sharpened for him from its scabbard and stabbed Perryman to

death, stating, “Roy, I hate for it to end like this, but its

[sic] your time to go.” White then stole several firearms

belonging to Perryman and left his home.

Shortly after killing Perryman, White left Waco with Gary

Dale Livingston and subsequently met up with Gary Livingston’s

brother, James Livingston, at a motel on Interstate 35. The

three proceeded north to McKinney, Texas. White and the

Livingston brothers discussed robbing a store, and White observed

that they would be unable to leave any witnesses to the robbery

alive. They then proceeded approximately three miles east on

Highway 380 to a gas station and convenience store named Hill Top

Grocery, where they arrived at approximately 6:30 a.m.

The station owner, 73-year-old Preston Broyles, began

pumping gas into White’s car. Gary Coker and Billy St. John,

2 both eighteen years old, had stopped to put oil in their truck at

the station. White exited the car with a .30 caliber Plainfield

carbine machine gun and ordered Broyles, Coker, and St. John into

the station office. White ordered Broyles to open the cash

register and ordered Broyles, Coker, and St. John to hand over

their wallets. One of the robbery victims made a comment that

apparently angered White. White responded, “I wished you hadn’t

said nothing, I’m going to kill you.” James Livingston aimed a

.22 caliber pistol at the victim who had made the comment, and

White shoved him out of the way, stating, “He’s mine.” White

then repeatedly shot Broyles, Coker, and St. John, killing all

three of them. Just prior to shooting the last of the victims,

who was begging for his life, White stated, “Goddammit, you’ve

got to go too, I’m not going to leave any witnesses.” White and

the Livingstons then returned to Waco, and the three divided up

the proceeds of the robbery, with each of them receiving $65.

After returning to Waco, James Livingston parted company

with White and Gary Livingston, who left town for California.

They made it as far as Abilene, Texas and then decided to return

to Waco. While in Waco, White and Gary Livingston threw the

machine gun used in the Hill Top Grocery murders into the Brazos

River. They then got some clothing and headed for Mississippi.

Somewhere along the way, White got angry at Gary Livingston and

threatened to shoot him. Gary Livingston asked to get out of the

car, and White left him in Tyler, Texas.

3 White arrived at his cousin Johnny White’s home in

Cleveland, Mississippi on May 14, 1974. White told Johnny White

about what had happened at Hill Top Grocery and also stated that

he intended to kill a Mississippi judge known as Judge Micky, who

had been involved in a previous criminal conviction of White.

Johnny White convinced him to surrender to law enforcement

authorities at the Boliver County Sheriff’s Department. White

gave statements to Mississippi and Texas law enforcement officers

implicating himself in the Hill Top Grocery murders both at the

Mississippi jail and during the trip back to Texas.

II. PROCEDURAL BACKGROUND

On May 24, 1974, a Collin County grand jury indicted White

and the Livingston brothers for the capital murder of Broyles,

Coker, and St. John. After a jury trial, White was found guilty

of the capital murder of Broyles and sentenced to death. The

Texas Court of Criminal Appeals affirmed White’s conviction and

sentence on July 14, 1976, see White v. State,

(Tex. Crim. App. 1976), and the Supreme Court denied his petition

for a writ of certiorari, see White v. Texas,

(1977). White subsequently challenged his conviction

collaterally through two state applications for a writ of habeas

corpus. The Texas Court of Criminal Appeals granted the second

such motion on the ground that White had been impermissibly

compelled to undergo a government psychiatric examination, the

4 results of which were used against him at trial, in violation of

Estelle v. Smith,

(1981), and vacated his

conviction.

On the same date that the Texas Court of Criminal Appeals

granted White’s application for a writ of habeas corpus, the

trial court appointed counsel for White and again set the case

for trial. The trial began on June 8, 1987, and the jury

returned a guilty verdict. After the punishment phase, the jury

answered the special issues submitted to it pursuant to article

37.071 of the Texas Code of Criminal Procedure in the

affirmative.1 The trial court accordingly sentenced White to

death. The Texas Court of Criminal Appeals affirmed White’s

conviction on direct appeal, and the Supreme Court denied his

petition for a writ of certiorari, see White v. Texas,

(1993).

White filed his first federal habeas petition in 1993, and

the district court dismissed it without prejudice on May 11,

1 At the time of White’s trial, the special issues mandated by article 37.071 were as follows:

(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;

(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society . . . .

TEX. CODE CRIM. PROC. ANN. art. 37.071 (Vernon 1981) (amended in 1985).

5 1994, to allow White to exhaust his state remedies on the claims

presented. White then filed a state application for habeas

relief, which the Texas Court of Criminal Appeals denied on July

12, 1994. On July 14, 1994, White filed another federal habeas

petition, asserting the same claims presented in his state habeas

application, and a motion to stay execution. On July 15, 1994,

the district court granted White’s motion for a stay. On

November 7, 1997, the district court adopted the magistrate

judge’s report and recommendation that White’s habeas petition be

denied. See White v. Director, TDCJ-ID,

(E.D. Tex. 1997). White filed a notice of appeal and an

application for a certificate of probable cause (CPC) on November

24, 1997, and the district court granted White a CPC on December

12, 1997. White now appeals the district court’s denial of his

petition for habeas relief.

III. DISCUSSION

On appeal, White contends that he is entitled to habeas

relief on two grounds: (1) the trial court committed

constitutional error by denying his request for the appointment

of a psychiatrist to aid with his defense at the punishment phase

of his trial and (2) the court’s failure to appoint such a

psychiatrist rendered the assistance provided by his counsel

unconstitutionally ineffective. We consider each of these

arguments in turn.

6 A. Failure to Appoint a Psychiatrist

In Ake v. Oklahoma,

(1985), the Supreme Court

held that the state has a constitutional obligation to provide an

indigent criminal defendant with access to the assistance of a

psychiatrist in the following two circumstances: (1) “when a

defendant demonstrates to the trial judge that his sanity at the

time of the offense is to be a significant factor at trial” and

(2) “in the context of a capital sentencing proceeding, when the

State presents psychiatric evidence of the defendant’s future

dangerousness.”

.

Based upon his belief that the state would offer psychiatric

evidence to establish his future dangerousness during the

punishment phase of his trial, White made a motion for the

appointment of a psychiatrist. The trial court offered White the

following options: (1) a simultaneous, joint examination

conducted by a government psychiatrist and a psychiatrist of

White’s choosing or (2) an examination by a court-appointed

psychiatrist who would then report to the trial court, the

prosecution, and White. White declined both options and the

trial court therefore denied his motion.

White contends that the options offered by the trial court

did not satisfy Ake because they forced him to make a choice

between exercising his due process and equal protection-based

rights to psychiatric assistance and his Fifth Amendment

7 privilege against self-incrimination. He bases this argument on

the fact that both options proposed by the trial court would have

resulted in full disclosure of the results of the examination and

any incriminating statements made by White during the examination

to the state. The state concedes that its intention to offer

psychiatric evidence of White’s future dangerousness was

sufficient to vest White with a right to psychiatric assistance

under Ake. However, it contends that the options proposed by the

trial court were sufficient to satisfy Ake. For the reasons set

forth below, we conclude that we need not reach the issue of

whether the options posed by the trial court satisfied Ake

because, assuming arguendo that they did not, the error was

harmless.2

2 The district court in this case accepted the magistrate judge’s conclusion that this court’s decision in Granviel v. Lynaugh,

(5th Cir. 1989), mandates a conclusion that the trial court did not commit Ake error in this case. In Granviel, this court addressed a constitutional challenge to article 46.02 of the Texas Code of Criminal Procedure. See

. At the time pertinent to Granviel, article 46.02 provided that the “court may at its discretion appoint disinterested experts to examine the defendant with regard to his present competency to stand trial and as to his sanity.” TEX. CODE CRIM. PROC. ANN. art. 46.02, § 2(f)(1), historical notes (Vernon 1979) (amended 1975). The trial judge appointed an expert pursuant to this statute. See Granviel,

. Shortly before the petitioner’s trial, article 46.02 was amended to provide that “[a] written report of the examination [conducted by the appointed expert] shall be submitted to the court within 30 days of the order of examination, and the court shall furnish copies of the report to the defense counsel and the prosecuting attorney.” TEX. CODE CRIM. PROC. ANN. art. 46.02, § 3(d) (Vernon 1979). Pursuant to the amended statute, the trial court ordered release of the appointed expert’s report to the state. See Granviel,

.

8 The petitioner in Granviel, who raised an insanity defense during the guilt phase of his trial, claimed in his petition for habeas relief that the procedure established by article 46.02 was insufficient to satisfy Ake because it authorized disclosure of the psychiatrist’s report to the state. Granviel,

. This court rejected the petitioner’s contention, concluding that the appointment of a disinterested expert satisfied Ake’s mandate that the state guarantee criminal defendants access to “‘the raw materials integral to the building of an effective defense.’”

at 192 (quoting Ake,

). The court further rejected the defendant’s contention that the admission of the testimony of the psychiatrist who conducted the examination against him at trial violated his Fifth Amendment privilege against self-incrimination because the petitioner had placed his mental state at issue by pleading insanity. See

.

In his report and recommendation, the magistrate judge concluded that Granviel is controlling in this case. However, this case is at least arguably distinguishable from Granviel. When a criminal defendant pleads an insanity defense and offers psychiatric evidence in support thereof, he places his mental state at issue. This court has long recognized that “a defendant who puts his mental state at issue with psychological evidence may not then use the Fifth Amendment to bar the state from rebutting in kind.” Schneider v. Lynaugh,

(5th Cir. 1988). This rule rests upon the premise that “[i]t is unfair and improper to allow a defendant to introduce favorable psychological testimony and then prevent the prosecution from resorting to the most effective and in most instances the only means of rebuttal: other psychological testimony.”

.

In this case, White did not place his own mental state at issue; rather, the state did so by offering psychiatric evidence of his future dangerousness. As indicated infra, White sought the appointment of an independent psychiatrist merely as a means of counterbalancing the state’s evidence. It may be the case that by offering rebuttal psychiatric testimony based upon an out-of-court psychiatric examination the results of which the state was not privy to, White would have sacrificed any Fifth Amendment right he otherwise possessed to decline to submit to a state psychiatric examination the results of which could be used against him at trial. See Estelle v. Smith,

, 461- 69, 472 (1981) (holding that the admission of statements made by the defendant during a pretrial psychiatric examination violated his Fifth Amendment privilege against compelled self- incrimination because he was not advised before the examination that he had a right to remain silent and that any statement that

9 1. Applicability of harmless-error analysis to the alleged Ake error

To date, this court has not squarely addressed the question

of whether Ake error is amenable to harmless-error analysis,

though in Volson v. Blackburn,

(5th Cir. 1986), we

implied that a habeas petitioner must make some showing of

“prejudice” in order to be entitled to habeas relief on the basis

of Ake error. See

. Three other circuits have

expressly concluded that Ake error is subject to harmless-error

analysis, and we now join them. See Tuggle v. Netherland,

(4th Cir. 1996); Brewer v. Reynolds,

(10th Cir. 1995); Starr v. Lockhart,

(8th Cir. 1994).

he made could be used against him at a capital-sentencing hearing, but noting that “a different situation arises where a defendant intends to introduce psychiatric evidence at the penalty phase”). However, in this case, it was not even especially clear that White intended to offer psychiatric testimony from the psychiatrist whose appointment he sought from the trial court. Rather, he may have simply used the psychiatrist’s assistance in formulating a cross-examination of the state’s psychiatrist. In such a circumstance, it is not clear that the trial court could properly condition White’s access to psychiatric assistance upon submission to a psychiatric examination the results of which would be immediately accessible to the state. As indicated infra, however, we need not resolve this issue because, even assuming that the trial court committed Ake error by so conditioning White’s access to the assistance of a psychiatrist, such error was harmless. We therefore decline to resolve the issue of whether the trial court actually committed Ake error.

10 Whether a particular constitutional error is subject to

harmless-error analysis hinges upon whether the error constitutes

“trial error” or “structural error.” Trial error is error that

“‘occur[s] during the presentation of the case to the jury.’”

Brecht v. Abrahamson,

(1993) (brackets in

original) (quoting Arizona v. Fulminante,

(1991)). Such error “is amenable to harmless-error analysis

because it ‘may . . . be quantitatively assessed in the context

of other evidence presented in order to determine [the effect it

had on the trial].’”

(ellipses and brackets in original)

(quoting Fulminante,

). “Structural error” is

error “affecting the framework within which the trial proceeds,

rather than simply an error in the trial process itself.”

Fulminante,

. By its very nature, structural

error “def[ies] analysis by ‘harmless-error’ standards.”

.

The Supreme Court has observed that classification of an

error as structural, and therefore not subject to review for

harmlessness, is “the exception and not the rule.” Rose v.

Clark,

(1986). “[I]f the defendant had counsel

and was tried by an impartial adjudicator, there is a strong

presumption that any other errors that may have occurred are

subject to harmless-error analysis.”

.

As noted earlier, Ake recognizes a constitutional right on

the part of a criminal defendant to the assistance of a

11 psychiatrist in two general circumstances: (1) “when [the]

defendant demonstrates to the trial judge that his sanity at the

time of the offense is to be a significant factor at trial,” and

(2) “when the State presents psychiatric evidence of the

defendant’s future dangerousness” during a capital sentencing

hearing. Ake,

. In this case, as White himself

concedes in his reply brief, we need only concern ourselves with

the potential harmlessness of a trial court’s error in denying a

request for the assistance of a psychiatrist in developing a

defense on the issue of future dangerousness during the

punishment phase of trial because this was the only basis upon

which White predicated his request for expert psychiatric

assistance.3 See Williams v. Collins,

, 844 n.10

(5th Cir. 1993) (noting in dicta that, “in evaluating an Ake

3 At the pretrial hearing at which the trial court addressed White’s request for the appointment of a psychiatrist, the trial court asked whether “there [was] some question of competency of Mr. White to stand trial, or some question about whether he was insane at the time of the alleged offense.” White’s counsel responded as follows:

I don’t have any question about the first question the Court raises about his competency to stand trial at this point. But his mental state at the time of the offense, there might be some question, and that is one thing which we would want to have a psychiatrist appointed.

This statement alone was plainly insufficient to support the appointment of a psychiatrist to assist in the development of an insanity defense. See Volson v. Blackburn,

(5th Cir. 1986) (“Ake requires that the defendant, at a minimum, make allegations supported by a factual showing that the defendant’s sanity is in fact at issue in the case.”).

12 claim, we should look only to the evidence before the trial judge

at the time he ruled on the request for psychiatric assistance”);

Messer v. Kemp,

(11th Cir. 1987) (en banc)

(evaluating an Ake claim by “examining the information before the

trial judge when he denied the defendant’s motion for the

appointment of an independent psychiatrist”).

White’s motion requesting the appointment of a psychiatrist

merely stated the following:

This case involves complex issues of fact. It is necessary for the defendant’s counsel to have full access to an accurate knowledge of the facts involved in the case in order to render effective assistance to the defendant in the preparation and trial of this case. Such knowledge can come only through the concentrated efforts of an experienced psychiatrist.

During a pretrial hearing on this and other motions, White’s

counsel clarified the basis of his request for the appointment of

a psychiatrist as follows:

Your Honor, its [sic] our feeling that the State is going to attempt to offer psychiatric testimony at the punishment phase of the case, if the punishment phase is reached, to bear on the question of how the jury will be [asked] by the State to answer the Special Issues which will be submitted to them on the punishment phase, if there is a punishment phase.

. . . [I]t would be our position that the Defendant, in fairness, should be granted our own expert psychiatric witness who would examine the Defendant and come to some conclusions about his mental state and questions of future dangerousness in order to have a balanced view presented to the jury in the punishment phase, if there is a punishment phase.

Of course we would want to, and our motion is predicated upon the Court’s cloaking the expert with the attorney/client privilege.

13 We have little difficulty concluding that the trial court’s

refusal to appoint an independent psychiatrist to examine White

without disclosure to the state on the grounds White advanced in

support of his request for such an appointment was trial error

subject to harmless-error analysis if it in fact constituted

error at all. White’s right to the assistance of a psychiatrist

in this case was predicated upon the fact that the state intended

to, and did, introduce psychiatric testimony regarding future

dangerousness. Absent such testimony by the state, White would

have had no constitutional right under Ake to the appointment of

a psychiatrist. Thus, if the state’s admission of psychiatric

testimony is subject to harmless-error analysis, then the

purported Ake error is likewise subject to harmless-error

analysis.

The Supreme Court has held that the erroneous admission of

psychiatric testimony is subject to harmless-error analysis. See

Satterwhite v. Texas,

(1988); see also Brown

v. Butler,

(5th Cir. 1989). Such error

constitutes trial error because the effect of the erroneous

admission of evidence is generally capable of being

“quantitatively assessed in the context of other evidence

presented in order to determine [the effect it had on the

trial].” Fulminante,

. Therefore, we conclude

that Ake error of the type alleged by White likewise constitutes

trial error and is therefore subject to harmless-error analysis.

14 White argues, however, that the effect of the purported Ake

error in this case was greater than the effect of the mere

erroneous admission of psychiatric testimony offered by the state

and that the purported error therefore constitutes structural

error. In support of this contention, White argues that he was

entitled to the appointment of a psychiatrist based solely upon

the fact that his future dangerousness was a significant issue

during the punishment phase of his trial. He therefore contends

that he was entitled to the assistance of a psychiatrist

regardless of whether the state offered psychiatric evidence of

future dangerousness and thus that the impact of the court’s

purported error was much broader than the admission of the

state’s psychiatric evidence, encompassing the more-difficult-to-

quantify assistance that a psychiatrist could have provided in

preparing White’s defense.

At the core of White’s argument is a contention that all

Texas capital defendants are entitled to the appointment of a

psychiatrist because their future dangerousness will always be a

significant factor during the punishment phase of trial. This is

so because, under Texas’s capital sentencing scheme, both at

present and at the time of White’s trial, imposition of the death

penalty requires that the state prove 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.” TEX. CODE CRIM. PROC. ANN. § 37.071 (Vernon &

15 Supp. 1998). However, we recently rejected this contention in

Goodwin v. Johnson,

(5th Cir. 1997). There, we

explained,

In Ake, the Court indicated that the due process entitlement to the assistance of a psychiatrist when the state presents psychiatric evidence of future dangerousness is predicated upon the notion that psychiatric testimony offered on behalf of the defendant is uniquely capable of ‘uncover[ing], recogniz[ing], and tak[ing] account of . . . shortcomings in predictions’ made by the state’s psychiatrists.

(brackets in original) (quoting Ake,

). We further noted, and reiterate here, that “[i]t is simply

not the case that . . . nonpsychiatric evidence of future

dangerousness . . . , such as [the defendant’s] criminal history

and [statements by the defendant indicating a lack of remorse],

are uniquely capable of being rebutted only by psychiatric

testimony.”

.

We acknowledged in Goodwin that a few other circuits have

adopted a more expansive reading of Ake, holding that a defendant

may be entitled to the appointment of a psychiatrist in some

circumstances in which the state offers only nonpsychiatric

evidence of future dangerousness. See

(citing Clisby v.

Jones,

, 929 n.7 (11th Cir. 1992), and Liles v.

Saffle,

(10th Cir. 1991)). However, even

under the expansive reading of Ake adopted by these circuits, a

defendant must establish that “his mental condition could have

been a significant mitigating factor.” Liles,

;

16 see also Clisby,

(“Ake requires a state to

provide the capital defendant with such access to a competent

psychiatrist upon a preliminary showing to the trial court that

the defendant’s mental status is to be a significant factor at

sentencing.”). As was the case in Goodwin, White made no such

showing to the trial court. See Goodwin,

.

The conclusory allegation contained in White’s motion for the

appointment of a psychiatrist that such an appointment “[was]

necessary for [White’s] counsel to have full access to an

accurate knowledge of the facts involved in the case” was

insufficient of itself to demonstrate White’s entitlement to the

appointment of a psychiatrist. See Volanty v. Lynaugh,

(5th Cir. 1989) (holding that a motion for the

appointment of a psychiatric expert based on an allegation that

the defendant was temporarily insane at the time of the offense

as a result of drug use was insufficient to support an Ake claim

absent additional supporting evidence); Volson,

(holding that an attorney’s “conclusional allegation” that his

client “was unable to understand the difference between right and

wrong at the time of the offense” was insufficient to entitle him

to the appointment of a psychiatrist under Ake). Further, when

asked by the trial court to clarify the basis on which he sought

the appointment of a psychiatrist, White merely stated that he

was entitled to the appointment of a psychiatrist based on the

fact that the state intended to present psychiatric evidence and

17 made no additional factual showing evidencing his entitlement to

the appointment of a psychiatrist on any other basis.

Because White did not make a showing to the trial court that

he was entitled to expert psychiatric assistance on any basis

other than the fact that the state intended to present

psychiatric evidence regarding his future dangerousness, he had

no right to the assistance of a psychiatrist but for the state’s

offering psychiatric evidence regarding his future dangerousness.

See Williams,

n.10; Messer,

; cf.

Ake,

(noting that an indigent defendant has a

constitutional right to the appointment of a psychiatrist “when

the defendant demonstrates to the trial judge that his sanity at

the time of the offense is to be a significant factor at trial”

(emphasis added)). Thus, assuming that the trial court committed

Ake error by (1) conditioning the appointment of a psychiatrist

on White’s submission to a mental examination and state access to

the results thereof and (2) allowing the state to present

psychiatric evidence, such error would have been cured had the

court simply precluded the state from admitting psychiatric

evidence. As noted earlier, the erroneous admission of

psychiatric evidence during a capital sentencing hearing is

subject to harmless-error analysis. See Satterwhite,

. We therefore proceed to a determination of whether the

admission of such evidence was harmless in this case.

18 2. Harmlessness of the alleged Ake error

White’s Ake claim is before us in the context of a

collateral attack on a final state judgment of conviction and

sentence. Interests of comity and federalism, as well as “the

State’s interest in the finality of convictions that have

survived direct review within the state court system” mandate

that the alleged Ake error does not entitle White to habeas

relief unless it “‘had a substantial and injurious effect or

influence in determining the jury’s verdict.’” Brecht v.

Abrahamson,

(1993) (quoting Kotteakos v.

United States,

(1946)). We conclude that it

did not.

During the penalty phase of White’s trial, the state’s

psychiatric evidence consisted of the testimony of Dr. Ronald

Markman, who testified on the basis of a hypothetical scenario

predicated upon the evidence adduced during both the guilt and

punishment phases of White’s trial, that a person who had engaged

in the type of violent criminal activity in which the evidence

indicated White had engaged has an antisocial personality

disorder and poses a risk of future dangerousness. Specifically,

Dr. Markman testified as follows during direct examination:

Q: Okay if you were going to use a one to ten scale of sociopaths, because you indicated there are some people that actually meet the diagnostic criteria that are actually functioning in our society without being criminals, and one being the mildest form of antisocial personality disorder,

19 mildest towards society, and ten being the extremest [sic] form of antisocial personality where would you place the individual in our hypothetical question?

A: In the 9 or 10 area.

Q: Extreme end [of] the spectrum?

A: That’s right.

Q: Is such a person dangerous?

A: In the presence of past dangerous activity, the answer is yes.

Q: Okay, at least if you were to cut off your inquiry in 1974, let’s just go back 13 years in time and you are sitting here and we are all sitting here, was that person dangerous in 1974?

A: Clearly, yes.

Q: How dangerous?

A: Dangerous to the point that he would have to be segregated in order to make the society safe.

Q: Something would have to be done to protect society from him?

A: That’s right.

Q: Now you have indicated that there is no cure; is that correct?

A: Nothing that could alter the behavioral pattern, no. Not at this time.

. . .

Q: . . . I am going to ask you whether or not you have an opinion, based upon reasonable medical certainty, as to whether or not there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society right now?

. . .

20 A: In my [o]pinion, with the information at hand, it suggests a high possibility of recidivistic activity, and, therefore, would qualify as being dangerous to society at large.

Q: You consider it probabl[e] that that person would commit criminal acts of violence in the future?

. . .

A: Yes.

During closing argument, counsel for the state focused to

some degree upon Dr. Markman’s testimony, particularly Dr.

Markman’s quantification of White’s degree of sociopathy.

Additionally, counsel for the state noted that Dr. Markman’s

testimony was unrefuted and that White could have put on

psychiatric evidence of his own had he chosen to do so.

Assuming that the trial court’s refusal to appoint a

psychiatrist to examine White privately rendered the admission of

Dr. Markman’s testimony error, we cannot conclude that such error

had a substantial and injurious effect on the jury’s answers to

the special issues presented pursuant to article 37.071 of the

Texas Code of Criminal Procedure. Prior to Dr. Markman’s

testimony, the jury heard a tremendous amount of additional non-

psychiatric evidence that, in all likelihood, rendered Dr.

Markman’s medical opinion that White posed a threat of future

dangerousness a foregone conclusion in the minds of the jurors.

During the guilt phase of White’s trial, Gerald Kunkle, a

former deputy sheriff of Collin County and one of the law

enforcement officers responsible for transporting White back to

21 Texas after he surrendered to law enforcement authorities in

Mississippi, testified that during the trip back to Texas, White

indicated that he felt no remorse for his killings. He further

testified that when he asked White how he felt about the Hill Top

Grocery murders, White responded that they were “[j]ust like

stepping on a fly.”

At the punishment phase of White’s trial, Glenda McFadden,

to whom White was married in the early 1970s, testified that

White beat her and threatened to kill her. She also testified

that she witnessed him beating another of his former wives who

was in her third trimester of pregnancy at the time. Ira Lee

Bragg testified that, on September 22, 1972, White invited him

into White’s apartment for a beer and that, while he and a few

others were talking amicably, White approached him from behind

and, without provocation, cut his throat with a hunting knife.

The jury heard considerable evidence of White’s murder of

Roy Perryman, including White’s detailed confession thereto.

Johnny White, White’s cousin, testified that, after arriving at

his home in Mississippi following the Hill Top Grocery murders,

White told him that he had killed Perryman because “[h]e had been

dreaming of killing somebody, and he wanted to kill him to see

how it was.” Howard Alford, a Texas Ranger who was one of the

law enforcement officers who transported White from Mississippi

back to Texas after his surrender, testified that during his

22 confession to the murder of Perryman, White seemed proud of what

he had done.

Johnny White further testified that, when White came to his

home after the Hill Top Grocery murders, White told him that he

wished to kill a local Mississippi justice of the peace known as

Judge Micky because she had convicted him of driving while

intoxicated the previous year. He further testified that, based

upon his contact with White even before the Hill Top Grocery

murders, he was of the opinion that White “is a threat and always

will be.” Michael LaRue, a former Waco police officer, also

testified that White’s reputation for being a peaceable and law-

abiding citizen was bad and that he also had a reputation for

violence.

Additionally, the state introduced a letter that White wrote

to his wife in December 1986, which stated in part the following:

Margaret you have told me several times that you don’t want to be married anymore. For a good long while I thought you really wanted to be free from me, but now I don’t think that’s what you want at all. I think you still love me and want us to remain married; but you also want to be able to live with that other dude out there or write to someone else in here without me knowing it, or just don’t think I’ll do anything about it one. You better think again Margaret, because I’m not about to share you with anyone, and if you keep fucking around, you gonna end up getting someone hurt real bad woman. And that include here or when I get out and come to Montana. Because if you are still married to me when I get out of here, I’m coming to Montana and taking what is mine, and you are mine as long as you are married to me. And if you are fucking around with someone here behind my back, someone is just before getting hurt because no man in prison will

23 let another prisoner come between him and his wife and get by with it.

. . .

P.S. Margaret its very dangerous to play around with someone’s wife and love life and future, and its equal as dangerous to deprive a man of what is his concerning financial help when that man is in prison depending wholy [sic] on his wife for the help he gets and needs. You might should pass that message on to the son of a bitch that split us up, because he’s playing a dangerous fucking game, and it could very easy cost him dearly. More than he wants to pay too. I do know one thing he took everything away from me, even my love and joy when he came between us, and I’m not going to forget that very easy. So tell him I said walk slow and watch out for shadows in the dark, because shadows can creep up when he’s least expecting them!!!!!!!! Do you catch my drift Margaret?

Your Husband Love Excell

Dawn Apolito, one of the detention officers responsible for

White’s custody during his trial, also testified that White

threatened Johnny White during a recess after Johnny White had

testified against him. She testified that White seemed extremely

tense and that he stated to her, “I guess you could see what I

wanted to do back there.” He then said, “That’s all right, I’ll

get that son-of-a-bitch.”

In light of the tremendous amount of evidence indicating

White’s propensity for violence, we are convinced that it is

highly unlikely that Dr. Markman’s testimony swayed the jury in

its answer to the second special issue under article 37.071 of

the Texas Code of Criminal Procedure. This conclusion is

bolstered by the fact that Dr. Markman acknowledged during cross-

24 examination that the psychiatric profession is sharply divided by

disagreement as to whether past behavior is predictive of future

dangerousness. He further stated that dangerous behavior by

persons with antisocial personality disorders decreases

significantly with age because individuals begin to run out of

energy as they reach their fifth and sixth decades. At the time

of his second trial, White was forty-nine years old and thus well

into his fifth decade. Based on the foregoing, we are confident

that, if the trial court erred in admitting Dr. Markman’s

testimony, such error did not have a substantial and injurious

effect upon the jury’s answers to the special issues presented to

it during the punishment phase.

White argues, however, that the purported Ake error in this

case was not harmless because, had a psychiatrist been appointed

to assist him, he may have been able to more fully develop a

defense both in regard to the mens rea element of capital murder

and the two special issues that the state sought to establish

during sentencing. Specifically, White offers the affidavit of

Dr. George Woods, which states his medical opinion that White

suffered from a “toxic delirium” at the time of the offense and

that it is “highly probable that [] White suffered from an

organic brain disorder at the time of the offense.” However, as

demonstrated in Part III.A.1, supra, Dr. Woods’s affidavit has no

impact upon our harmless-error analysis because White did not

request the appointment of a psychiatrist on any ground

25 independent of the fact that the state intended to offer

psychological evidence of future dangerousness. White’s trial

counsel did not bring to the attention of the trial court any

facts that would have evidenced the existence of a mental

disorder that may have warranted the appointment of a

psychiatrist to assist White. As indicated supra, if the trial

court erred at all in declining to appoint White an independent

psychiatrist, it erred in declining to appoint one on the basis

that the state intended to offer psychiatric evidence of future

dangerousness; it did not err in declining to appoint an expert

on any other basis because White did not ask for the appointment

of a psychiatrist on any other basis. See Williams,

n.10; Messer v. Kemp,

. Because we conclude

that Dr. Markman’s testimony did not have a substantial and

injurious effect on the jury’s answers to the special issues

presented to them pursuant to article 37.071 of the Texas Code of

Criminal Procedure, any Ake error that occurred in this case was

harmless. The district court therefore properly denied White’s

request for habeas relief on the basis of the alleged Ake error.

B. Ineffective Assistance of Counsel

White also claims that the trial court’s denial of his

request for the appointment of an independent psychiatrist

rendered his counsel’s performance unconstitutionally

ineffective. The Supreme Court has held that, in order to prove

26 that counsel afforded unconstitutionally ineffective assistance,

a petitioner must establish that his attorney’s performance was

deficient and that such deficiency prejudiced his defense. See

Strickland v. Washington,

(1984).

In an attempt to demonstrate deficient performance on the

part of his trial counsel, White in essence simply readvances his

Ake claim under the guise of an ineffective assistance claim in

that he expressly states that no act or omission on the part of

his trial counsel rendered counsel’s assistance ineffective. In

this regard, White’s brief states the following:

As far as the first prong of the Strickland analysis is concerned, the present case is not an ordinary ineffective assistance of counsel claim. The performance of Mr. White’s trial counsel was not unreasonable and deficient because of what they failed to do. Trial counsel performed appropriately, recognizing the possible issues regarding Mr. White’s mental capacity, recognizing the need for expert assistance in exploring these issues, and moving the court, prior to trial, for the appointment of a defense expert. Trial counsel’s performance was rendered unreasonable and deficient by the combination of White’s indigency, his exercise of his Fifth Amendment rights, and the trial court’s refusal to simply appoint a partisan expert who would assist the defense and only the defense in the exploration of the issues regarding Mr. White’s mental capacity.

White does not claim that his counsel performed ineffectively by

failing to make a broader-based request for the appointment of a

psychiatrist including a factual showing that might have entitled

him to the appointment of a psychiatrist even absent the state’s

intention to present psychiatric evidence.

27 Assuming for the sake of argument that the trial court’s

purported Ake error could have rendered the performance of

White’s trial counsel deficient within the meaning of Strickland,

our conclusion that the purported Ake error was harmless

forecloses any argument that deficiency in the performance of

White’s trial counsel precipitated by the Ake error was

prejudicial. In Kyles v. Whitley,

(1995), the

Supreme Court observed that the precedent from which it derived

the Strickland prejudice standard indicates that Strickland

“would recognize reversible constitutional error only when the

harm to the defendant was greater than the harm sufficient for

reversal under Kotteakos[ v. United States,

(1946)],” which announced the harmless-error standard that the

Court later held applicable to constitutional errors alleged via

a habeas petition, see Brecht,

; Kyles,

; cf. Turner v. Johnson,

(5th Cir.

1997) (noting that a habeas petitioner could not establish

Strickland prejudice based upon his counsel’s failure to object

to improper portions of the prosecution’s closing argument

because the argument constituted harmless error). Because the

purported Ake error did not “ha[ve] a substantial and injurious

effect or influence in determining the jury’s verdict,” Brecht,

(internal quotation marks omitted), assuming that

it could have rendered White’s counsel’s performance deficient,

any resulting deficiency could not have been prejudicial. The

28 district court therefore properly denied White’s request for

habeas relief on the basis of ineffective assistance of counsel.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.

29