Griffith v. State

¶1OPINION

¶2delivered the opinion of the Court,

¶3Appellant was convicted in December 1995 of a capital murder committed in October 1994. V.T.C.A, Penal Code, Section 19.03(a)(2). Pursuant to the jury’s answers to the statutory punishment issues set forth in Texas Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial judge *285sentenced appellant to death.1 Article 37.071, Section 2(g). Direct appeal is automatic. Article 37.071, Section 2(h). We will affirm.

¶4Appellant raises twelve points of error. He raises challenges to the sufficiency of the mitigation evidence. However, for the reasons put forth under those points, we need not set out a comprehensive recitation of the facts. Hence, only those facts necessary to address appellant’s points will be included. Appellant’s points will be addressed in the order in which he raises them on appeal.

¶5Appellant advances in his first point of error that the trial court erred in failing to suppress the evidence seized from the hotel room following his arrest.2 Specifically, appellant asserts not that his arrest was illegal, but that the State failed to carry its burden at the suppression hearing to show that it was lawful. Because of this, appellant contends that the evidence should be suppressed notwithstanding the fact that he signed a consent to search form.

¶6The record reveals that several credit cards were stolen from the victim. Upon investigation, the police began to suspect appellant. Furthermore, outstanding warrants for other crimes not related to the capital murder charge already existed for appellant’s arrest. In pursuing the investigation of the capital murder, officers were led to a Holiday Inn where a room had been secured by one of the stolen cards. The police knocked on the door of the room and appellant answered. According to officers’ testimony at the suppression hearing, the police arrested appellant pursuant to the outstánd-ing warrants and quickly conducted a protective search of the room. Within five minutes of entry, appellant was presented with a consent to search form which .he signed.3

¶7At the motion to suppress hearing, appellant admitted on cross-examination that he knew what the consent to search form was,4 he signed it “knowingly and voluntarily,” and he knew that he could have refused to sign it. Appellant further admitted that he knew a warrant was out for his arrest on an assault charge and that police officers “had a lawful right to arrest” him on that charge. Given this testimony, we hold that the trial judge acted within her discretion in overruling appellant’s motion to suppress. See Baker v. State, 956 S.W.2d 19 (Tex.Cr.App.1997). Point of error one is overruled.

¶8In his second point of error, appellant asserts that the trial court erred in “failing to provide funds with which to employ an expert witness.” Specifically, appellant claims he was entitled to funds to hire a particular psychologist, Dr. Theodore Blau, to rebut the testimony of State’s witness, psychologist Dr. Allan Brantley, of the Federal Bureau of Investigation’s (FBI’s) Behavioral Sciences Unit. To properly address this point of error, we must briefly set out the facts underlying the claim.

¶9The record reflects that appellant filed a motion on November 1, 1995, requesting the appointment of psychiatrist Mitchell Young and psychologist Ed Friedman. The trial court granted this request, but limited the funds available to $6,000.00. According to Dr. Young’s letter to defense counsel, psychologist David Hopkinson would also be helping with the case.5 On November 22, 1995, appellant filed two additional motions requesting the appointment of “expert assistance." Each of these motions specifically asked for the appointment of psychologist Dr. Theodore Blau. Appellant urged his motion be granted because Blau was needed to respond to State’s expert, FBI Special Agent Dr. Allan Brantley, who was going to use a *286“threat assessment technique” (apparently similar to a future dangerousness analysis) and “compare the defendant to profiles of certain serial killers and discuss [appellant’s] similarity to such individuals.” Blau was apparently needed to show why such testimony was not “scientifically validated” and should, therefore, be held inadmissible. No affidavits or other evidence of need were included with the motion.

¶10In considering the motion prior to trial, the trial judge asked appellant whether, if she granted his motion and appointed Blau, Blau was going to listen to Brantley’s testimony. Appellant responded that he did not think so. The judge also asked appellant why one of the psychologists or the psychiatrist that had already been appointed could not rebut Brantley’s testimony. Appellant responded that Brantley’s testimony was not psychological in nature, but instead was based upon a forensic analysis. Appellant asserted that Blau was necessary because he was one of the people who developed the techniques about which Brantley would be testifying and he was the only non-FBI person counsel was aware of who utilized them. The judge overruled his request.

¶11Prior to Brantley’s testimony • at punishment, the trial court held a hearing pursuant to Texas Rules of Criminal Evidence 702-705 to determine Brantley’s qualifications and the bases for his testimony. Brantley told the judge that he was going to render an opinion on appellant’s probability for being a future danger and that he was going to base that opinion upon crime scene photographs, investigative reports, interviews, autopsy photographs, school records, work records, and “everything that [he] could get [his] hands on.” Brantley stated that he was not testifying from a psychological perspective per se, but rather from his experience in the criminal justice field. Brantley also told the judge that he did not intend to use the “profiling” technique of which appellant complained. Appellant challenged Brantley’s testimony asserting that it was based on novel methodology and was cumulative because the State had established the same information through the cross-examination of appellant’s experts. The judge held the testimony admissible. After Brantley’s testimony, appellant re-urged his motion to be allowed to hire Dr. Blau. However, the judge also overruled this request.

¶12In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the United States Supreme Court explained that due process requires access to the raw materials integral to the building of an effective defense. Id. at 77, 105 S.Ct. 1087. In other words, the State must provide a defendant with the basic tools to present his defense within our adversarial system. Id.While the Akecase dealt with the appointment of a psychiatrist, it is now without question that Akerequires the appointment of an expert regardless of his field of expertise. Rey v. State, 897 S.W.2d 333, 338 (Tex.Cr.App.1995). As we set out in Rey:

“There is no principled way to distinguish between psychiatric and nonpsychiatric experts. The question in each case must be not what field of expert knowledge is involved, but rather how important the scientific issue is in the case, and how much help a defense expert could have given.” 897 S.W.2d at 338.

¶13Hence, the nature of an expert’s field and the importance and complexity of the issue will bear directly upon whether the appointment of an expert will be helpful. Id.The type of expert is also relevant to the determination of whether the trial was fundamentally unfair without the expert’s assistance. Id.

¶14However, this does not mean that the State must “purchase for an indigent defendant all the assistance that his wealthier counterparts might buy.” Ake, supra.Nor does it mean that a defendant has a constitutional right to choose an expert of his personal liking. Ake, supra; Cantu v. State, 939 S.W.2d 627, 638-639 (Tex.Cr.App.1997). Rather, the purpose of the appointment is to level the playing field; to give a defendant access to a competent expert who can assist in the evaluation, preparation, and presentation of the defense. See Rey, 897 S.W.2d at 337.

¶15In implementing this right to receive an expert, the burden is on the defendant to make a sufficient threshold showing *287of the need for the expert’s assistance. Rey, 897 S.W.2d at 339. In the instant case, it is not entirely clear exactly what type of expert appellant was seeking. The State’s expert, Brantley, told the court that he was going to testify on the issue of appellant’s future dangerousness, obviously a significant factor at trial. Furthermore, he specifically stated that he was not going to utilize the complained-of “profiling” technique, but instead was going to evaluate the evidence and make an assessment from that material. Whether from a psychological perspective or a criminal justice one, Brantley’s actual testimony was akin to the testimony of a forensic psychologist.

¶16Appellant asserted he needed Blau (a psychologist) to discount Brantley’s testimony concerning the “profiling” technique because he had helped to develop the technique.6 However, Brantley specifically indicated he was not going to utilize the technique. Even if Brantley had used the technique, it is unclear whether or not any of appellant’s other experts were versed in the use of “profiling” and, therefore, could have rendered competent assistance. The fact that appellant requested a third psychologist and not some criminal justice or other forensic expert weighs against his being able to show need for this particular expert. Given the facts and the testimony presented, we cannot say that the trial judge was outside of the zone of reasonable disagreement in refusing to appoint Blau. See Rey, supra.Appellant’s second point of error is overruled.

¶17In point of error three, appellant posits that the trial court erred in allowing Brantley to testify “without first holding a Rule 702 hearing to determine whether Brantley’s theories were sufficiently reliable to be admissible.” In his fourth point, he contends that the trial court erred in admitting Brantley’s testimony. The testimony at trial reveals the following exchange:

“THE COURT: Can I look at that; and then the other thing you want a hearing on—

“[DEFENSE COUNSEL:] Allen [sic] Brantley’s qualifications to testify under rule 701, 702 and 705.

“THE COURT: Okay. We’ll do that after we break.

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“So we’ll play the tape, break, do the hearing and you can put on Brantley.”

¶18The record further shows, prior to Brantley’s testimony before the jury, the judge did hear from both attorneys and Brantley concerning Brantley’s qualifications to testify and the basis of his testimony. There is no indication in the record that appellant was prohibited from calling witnesses for this “hearing,” nor did appellant make any complaint that this was not a sufficient hearing for purposes of qualifying the witness and establishing the basis of his testimony. Appellant’s third point of error is not supported by the record and is, therefore, overruled.

¶19With regard to point of error four, appellant claims that: 1) Brantley’s testimony was based upon novel scientific theory and was, therefore, unreliable, and 2) the testimony was further not admissible because it did not assist the jury by providing any specialized knowledge. Appellant’s allegations correspond with the trial court’s task in assessing the admissibility of evidence under Rule 702. Pursuant to Rule 702, the trial court must determine whether the scientific evidence offered is sufficiently reliable and relevant to help the jury in reaching accurate results. Hartman v. State, 946 S.W.2d 60, 62 (Tex.Cr.App.1997).7 The admission of such scientific evidence is within the sound discretion of the trial court and its decision regarding such will not be set aside absent an abuse of that discretion. Clark v. State, 881 S.W.2d 682, 698 (Tex.Cr.App.1994), cert. denied, 513 U.S. 1156, 115 S.Ct. 1114, 130 L.Ed.2d 1078 (1995).

¶20To be considered reliable, evidence must have its basis in sound scientific methodology. Id. Evidence that is not reli*288able is not helpful to the jury because it frustrates rather then promotes intelligent evaluation of the facts. Jordan v. State, 928 S.W.2d 550, 554 (Tex.Cr.App.1996). With respect to the relevance consideration, expert testimony must “assist the trier of fact to understand the evidence or to determine a fact in issue.” Jordan, 928 S.W.2d at 555. Expert testimony that does not relate to a fact in issue is not helpful. Id.

¶21The thrust of appellant’s argument seems to concentrate on Brantley’s use of the “profiling” technique. Appellant claims that this technique is not grounded in sound scientific theory and, therefore, should not have been admitted. However, during the hearing on Brantley’s qualifications, the witness expressly stated that he would “not offer testimony about a profile.” Because the witness did not offer the complained-of testimony, the majority of appellant’s argument is moot. Alternatively, appellant argues that the witness’s testimony was not relevant because it offered no expertise outside of the jury’s own capabilities and it was cumulative “because [the prosecution has] established [the same information] by cross examination of the three psychologists [the defense] put on. All three said yes in free society he’s dangerous.”

¶22In Clark, 881 S.W.2d at 698, we reaffirmed that psychological and psychiatric testimony is admissible during the punishment phase of a capital trial. However, the proponent of the evidence still has the burden to show that the witness possesses the requisite expertise required by Rule 702 and that the witness’s testimony will assist the fact-finder. Appellant does not attack Brantley’s qualifications as an “expert,” therefore, the only remaining question is whether the trial judge could have reasonably determined that his testimony would be of benefit to the fact-finder.

¶23An appellant’s potential for being a future danger is a question of fact which the jury must answer. See Article 37.071, Section 2(b). Furthermore, this Court has previously recognized that testimony from mental health experts is relevant to that issue. McBride v. State, 862 S.W.2d 600, 608 (Tex.Cr.App.1993), cert. denied, 512 U.S. 1246, 114 S.Ct. 2765, 129 L.Ed.2d 879 (1994).

¶24In the instant case, Brantley testified that prior to becoming a special agent with the FBI, he had worked as a psychologist in a maximum security prison for about six years. Among other duties, Brantley stated that he was responsible for assessing and evaluating the adult male felon population for potential dangerousness or future threat to the community should they be released on parole. Brantley told the jury that he reviewed “hundreds” of such cases during his time in that position.

¶25After leaving that post, Brantley became the senior psychologist and Mental Health Director for a three prison unit complex where he continued to perform future threat evaluations in addition to supervising other psychologists. Brantley further stated that he had taught “criminal psychology” at the FBI Academy for a number of years. Finally, Brantley told the jury that, before developing an opinion of appellant’s future dangerousness in the instant case, he reviewed the investigative reports, crime scene photos, autopsy photos, witness statements, and appellant’s school and personnel records, among other information.8

¶26Given Brantley’s specialized education and experience, and the effort he took to “fit” his evaluation to this particular ease, we cannot say that the trial judge abused her discretion in determining that Brantléy’s testimony would be helpful to the jury.9See Clark and McBride, both supra. Point of error four is overruled.

¶27In his fifth point of error, appellant complains that the trial court erred in allowing the victim’s brother to testify at the punishment stage of trial about the impact *289his sister’s death in the instant offense had on their family. Specifically, the witness testified to the relationship the victim had with him and his family. He told the jury that his sister had been the planner and coordinator for all of the holidays the family celebrated. He also related how their father had been diagnosed with cancer before the victim’s death, how the victim had helped to take care of him, and how their father quit fighting the disease after the victim was killed. Appellant did not cross-examine the witness.

¶28The trial court did not abuse its discretion to admit this evidence under this Court’s majority decision in Mosley v. State, 983 S.W.2d 249 (Tex.Cr.App.1998) (op. on reh’g). Point of error five is overruled.

¶29Appellant complains in points of error six through nine about issues relating to the requirement that, if sentenced to life in prison, he must spend at least forty years in jail before becoming eligible for parole. See Article 42.18, Section 8(b)(2). Specifically, appellant asserts in his sixth point of error that the trial court erred in not submitting an instruction to the jury informing them that he would have to spend at least forty years in prison if sentenced to life. In his seventh point, appellant avers that he should have been allowed to voir dire the jury on this issue. And finally, in his eighth and ninth points of error, appellant complains that his expert witnesses should have been allowed to testify that appellant’s threat of being a future danger would be substantially reduced given the required minimum incarceration time.

¶30Appellant contends these issues are controlled by the United States Supreme Court case of Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). He concedes that this Court has already decided the issues against him. However, he “respectfully disagrees with this Court’s reasoning” and urges us to consider his argument.

¶31In Smith v. State, 898 S.W.2d 838 (Tex.Cr.App.1995)(plurality opinion), cert. denied; 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995), this Court engaged in a comprehensive discussion of Simmonsas it relates to the law in Texas. We reiterated that parole is traditionally not a matter for jury consideration in a Texas capital murder trial. And, thus, it is not error for a trial court to refuse to admit testimony concerning parole. See Jones v. State, 843 S.W.2d 487, 495 (Tex.Cr.App.1992), cert. denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993). Further, we “absolutely reject[ed]” the premise that Simmonshas been extended to parole eligible defendants. Smith, 898 S.W.2d at 848. As such, we hold that the requested instruction, voir dire, and testimony which is the subject of these points were appropriately refused by the trial court. Smith, supra; Shannon v. State, 942 S.W.2d 591, 594 (Tex.Cr.App.1996); Broxton v. State, 909 S.W.2d 912, 918-919 (Tex.Cr.App.1995). Points six through nine are overruled.

¶32Appellant asserts in his tenth point of error that the evidence is insufficient to sustain the jury’s negative finding to the mitigation issue. Similarly, in his eleventh point of error, he challenges the factual sufficiency of the mitigation evidence. Appellant notes his awareness that this Court has consistently refused to address such points. However, he advances that such review is mandated under due process.

¶33We have previously held that the sufficiency of mitigation evidence is not reviewable by this Court. Lawton v. State, 913 S.W.2d 542, 557 (Tex.Cr.App.1995), cert. denied, 519 U.S. 826, 117 S.Ct. 88, 136 L.Ed.2d 44 (1996). We have also previously held that such a review is not constitutionally required. McFarland v. State, 928 S.W.2d 482, 499 (Tex.Cr.App.1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997). We decline to readdress the issue here. Points of error ten and eleven are overruled.

¶34Appellant attests in his final point of error that the trial court erred in allowing the State to introduce evidence that two Harris County Sheriffs Office Supervisors who wrote positively of appellant were fired because of criminal convictions. During the punishment stage of trial, the State called Ruben Diaz to testify. Diaz, a lieutenant in the Harris County Sheriffs Department, told *290the jury that he served as appellant’s immediate supervisor at one point in time. As a result of this relationship, Diaz testified that he formed the opinion that appellant had a bad reputation.

¶35While cross-examining Diaz, defense counsel introduced appellant’s Harris County personnel file. Discussing the contents of this file with Diaz, defense counsel revealed to the jury several documents generated by appellant’s past supervisors and colleagues chronicling his career as a peace officer. Among these were documents from deputies G. Poindexter and B. Mathis. Poindexter had conducted a check of appellant’s references when appellant submitted an employment application to the Sheriffs Department and placed documents in appellant’s file indicating that the people he had contacted spoke positively of appellant. Mathis had been one of appellant’s superiors in the early 1980’s and had given him several positive evaluations.10

¶36On the State’s redirect of Diaz, the prosecutor elicited testimony that Poindexter and Mathis had both been fired from the sheriffs department after being convicted of criminal offenses. It is this testimony of which appellant now complains.

¶37The State responds that the complained-of statements were admissible under Tex.R.Crim.Evid. 806. Rule 806 states in pertinent part:

“When a hearsay statement, ..., has been admitted in evidence, the credibility of the declarant may be attacked, ..., by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, offered to impeach the declarant, is not subject to any requirement that he may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine him on the statement as if under cross-examination.”

¶38While the State did not complain of the admission of appellant’s personnel file and its contents, the trial judge could have reasonably concluded that the documents contained within the file were hearsay. In other words, the judge could have determined that the documents were statements, other than ones made by the declarant while testifying at trial, which had been offered in evidence to prove the truth of the matters asserted within. See Tex.R.Crim.Evid. 801(d).

¶39Because we conclude the statements qualified as hearsay, the credibility of each declar-ant could then be attacked pursuant to the dictates of Rule 806. If the declarants had testified as witnesses, the State would have been allowed to impeach their credibility with a felony conviction or the conviction of a crime involving moral turpitude.11See Tex. R.Crim.Evid. 609(a). Hence, this same impeachment evidence could be used pursuant to Rule 806. Furthermore, the trial judge apparently engaged in the proper balancing test required under Rule 609(a) as evidenced by the fact that she made the State refrain from mentioning the specific crime of which each person was convicted. Given this, we cannot say that the trial judge abused her discretion in allowing the impeachment testimony. Point of error twelve is .overruled.

¶40Finding no reversible error, we affirm the conviction and sentence of the trial court.

¶41MANSFIELD, J., filed a concurring opinion.

¶42KELLER, J., filed a concurring opinion joined by HOLLAND and WOMACK, JJ.

¶54concurring.

¶55The majority either assumes the trial court had the foresight to consider factors this Court would, more than two years later, recognize as important in assessing admissibility of victim related evidence at punishment in a capital murder case or undertakes the appropriate consideration of such factors itself in a kind of silent de novo review to which no one is privy. In either case, I decline to join them.

¶56At the time of appellant’s trial admissibility of victim related evidence at punishment was, at the very most, questionable.1Mosley v. State, 983 S.W.2d at 262 (Tex.Crim.App.1998)(recognizing “[o]ur jurisprudence in this area has been somewhat inconsistent and confusing”). A majority of the Court in Mosley rendered the issue no longer questionable, holding, “[b]oth victim impact and victim character evidence are admissible-” Id. at 262. But the Court nevertheless placed admissibility within a specific context and purpose:

“Both victim impact and victim character evidence are admissible, in the context of the mitigation special issue, to show the uniqueness of the victim, the harm caused by the defendant, and as rebuttal to the defendant’s mitigating evidence.”

¶57Id. (emphasis added). Further, such evidence has no relevance to the issue on future dangerousness: “[sjuch evidence is patently irrelevant ... to a determination of future dangerousness.” Id. at 263. Trial courts were given considerable direction in assessing admissibility of victim related evidence under Rule 403:

Rule 403 limits the admissibility of such evidence when the evidence predominantly encourages comparisons based upon the greater or lesser worth or morality of the victim. When the focus of the evidence shifts from humanizing the victim and illustrating the harm caused by the defendant to measuring the worth of the victim compared to other members of society then the State exceeds the bounds of permissible testimony. We recognize that this standard does not draw a bright and easy line for determining when evidence concerning the victim is admissible and when it is not. Trial judges should exercise their sound discretion in permitting some evidence about the victim’s character and the impact on others’ lives while limiting the amount and scope of such testimony. Considerations in determining whether testimony should be excluded under Rule 403 should include the nature of the testimony, the relationship between the witness and the victim, the amount of testimony to be introduced, and the availability of other testimony relating to victim impact and character. And, mitigating evidence introduced by the defendant may also be considered in evaluating whether the State may subsequently offer victim-related testimony.

¶58Id. at 262.

¶59The trial court in the instant case ruled the evidence admissible without the benefit of the guidance offered by the majority in Mosley, over two years later. How can it be assumed the court took such factors into account? The majority dismisses appellant’s complaint about the admissibility of the victim related evidence, stating only “[t]he trial court did not abuse its discretion to admit this evidence under this Court’s majority decision in Mosley.” Majority opinion at 289. There is no indication from the majority’s opinion whether the admissibility of the victim related evidence was evaluated, by the trial court or by this Court, according to the considerations set out by the majority in Mosley. Perhaps it is the defendant’s burden to request such analysis.2 The majority *292does not say. It may be that the only binding value to the Court’s opinion in Mosley is its bottom line holding. Other pearls of wisdom offered the bench and bar in that case are non-binding dicta which needn’t be bothered with. I refuse to join the majority’s so-called application of Mosley.

¶60After reviewing the record, absent a waiver of the mitigation issue by appellant, and considering factors discussed in Mosley which bear on admissibility under Rule 403,1 would at least agree the victim’s brother’s testimony was harmless beyond a reasonable doubt as to the issue of future dangerousness3 and to the mitigation issue.4

¶61With these comments, I concur in the judgment of the Court.

¶68delivered the concurring opinion.

¶69I agree with the majority that the trial court did not abuse its discretion in not providing appellant with the funds to retain an expert, psychologist Theodore Blau. However, for the reasons stated herein, I believe, assuming, arguendo, that if it did err, the error was clearly harmless under Texas Rule of Appellate Procedure 44.2 or under its predecessor, Rule 81(b)(2).

¶70In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court held an indigent defendant has a due process right to state-funded expert assistance where the defendant makes a preliminary showing the issue for which he seeks said expert assistance is likely to be a significant factor at trial.1 In Ake, unlike the present case, the defendant was not provided with any expert assistance on either the issue of insanity (there was considerable evidence he may well have been insane) or on the issue of future dangerousness (the only evidence of future dangerousness presented at the punishment phase was the unrebutted testimony from the guilt phase of the State’s psychiatric witness).

¶71The present case could hardly be more dissimilar to Ake. First, the State presented considerable non-psychiatric evidence at the punishment phase, including graphic testimony as to appellant’s propensity for violent behavior. This evidence included the following:

(a) evidence appellant was fired in January of 1993 from his position as a Harris *293County deputy sheriff after he was convicted of assaulting his ex-wife and girlfriend.

(b) testimony of Cheryl Stanley, married to appellant from 1971 to 1981, describing several assaults made by appellant against her and their daughter. One of the assaults resulted in several of Stanley’s ribs being broken and another involved appellant holding a gun to her head.

(c) Lola Atkinson, who married appellant in 1989, testified as to appellant’s violent temper and described instances when he pulled a gun on her and broke furniture. She testified that after they separated, he broke down the door, stole her money, and broke the windows in her car. She testified she reported the last incident to the Sheriffs Department.

(d) Brenda Lockridge, who started dating appellant in October 1992, testified appellant had a bad temper and, on one occasion, choked her and pulled a gun on her. Then, three weeks later, he went into a rage, destroyed items in his apartment, held her hostage and threatened to kill her with a pair of scissors. Lockridge testified, after twelve hours, she escaped and called the police. This incident led to appellant’s arrest and conviction for assault.

(e) Hilda Garcia testified she met appellant in 1993 and moved in with him in March 1994. On one occasion she said he slapped her and chipped her tooth. On another occasion he destroyed some of her property and hit her in the breasts.

(f) Karen James, a teller at Guardian Savings and Loan, testified appellant entered the bank on October 14, 1994, pulled a gun and demanded money. After she gave him the money he shot her twice in the head.

(g) Loan Khuu testified appellant, on October 28, 1994, entered the bridal salon where she worked, pulled a gun and demanded all the money. After she gave him the money, appellant forced her into a back room and forced her at gunpoint and knife point to perform oral sex on him. He tied her up and left.

¶72Appellant presented evidence at the punishment hearing including testimony from Cheryl Stanley and several police officers, all of whom testified he was a good police officer and was very devoted to his job. Appellant also presented the testimony of two psychologists, Freichman and Hopkinson, and a psychiatrist, Young. These three experts testified appellant suffered from a borderline personality disorder. They testified appellant was unable to control his anger but the structure he had in his life while a police officer “held him together.” Dr. Young opined the structure provided by prison life would likely prevent him from committing future acts of violence, especially if appellant had no contact with women. The complainant in the instant case is a woman.2

¶73The State then presented the testimony of FBI agent Brantley. Before joining the FBI, Brantley was employed as a psychologist by a maximum security prison where he evaluated the future dangerousness of the inmate population. Brantley testified he studied the crime scene, autopsy photographs, the offense report and appellant’s school and work records. He also interviewed Karen James, Loan Khuu and one of the appellant’s girlfriends and visited the crime scene. He did not interview appellant. Based on his review of the case, Brantley opined appellant posed a future danger to society. He opined further that appellant, if confined, would likely prey on weaker male inmates.

¶74The defendant in Akewas provided with no expert assistance at the punishment phase; the only evidence presented on the issue of future dangerousness was testimony at the guilt phase by State experts that, in their opinion, Ake would be a future danger. Ake’s indigency rendered him unable to present evidence favorable to him on the key issue of future dangerousness, clearly a violation of his federal constitutional right to due process.

¶75In the present case, appellant was provided three expert witnesses, all of whom testified on his behalf at punishment. There was considerable expert testimony appellant would not be a future danger if confined in *294the environment of the penitentiary. Even if one assumes, arguendo, appellant should have been provided funds to retain Dr. Blau as an expert witness so as to potentially rebut Brantley’s testimony,3 in light of the extensive expert assistance he was provided, the failure of the court to do so, in my opinion, would not be error of a magnitude requiring reversal, assuming it was error at all.

¶76Furthermore, several witnesses testified as to the commission of many violent acts committed against women by appellant over a more than twenty-year period of time. These acts included violent assaults resulting in significant injuries, destruction of property, aggravated robberies, aggravated sexual assaults and attempted murder. These acts show appellant has been dangerous to society for many years and a rational jury could conclude he would continue to be so in the future. The facts of the instant offense, a vicious capital murder by stabbing with evidence of aggravated sexual assault, are evidence of appellant’s dangerousness. Under the standards set forth by this Court in Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987) and Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996), the evidence is more than factually sufficient to support the jury’s affirmative answer to the future dangerousness special issue. Indeed, it is hard to imagine any rational jury, given this evidence, could find appellant would not be a future danger to society.

¶77In light of all the evidence presented at the punishment phase, it is my opinion that the failure of the trial court, if one assumes this was error, to provide funds to retain Dr. Blau did not have a significant influence on the jury’s affirmative answer as to the first special issue. It is also my opinion that, even if one assumes this failure was error of a constitutional dimension, any such error did not contribute, beyond a reasonable doubt, to the jury’s punishment verdict. See Tex. R.App. Proe. 44.2(a) and 44.2(b). See also, Kotteakos v. U.S., 328 U.S. 750, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997).

¶78Because I agree the trial court did not err in failing to provide appellant with funds to retain Theodore Blau, I join the opinion of the Court.