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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-4793
JIM VANDERBILT,
Petitioner-Appellee,
versus
JAMES A. COLLINS, Director,
Texas Department of Criminal
Justice, Institutional Division,
Respondent-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
( June 17, 1993 )
Before POLITZ, Chief Judge, KING and EMILIO M. GARZA, Circuit
Judges.
POLITZ, Chief Judge:
The State of Texas appeals the grant of a writ of habeas
corpus vacating the death sentence imposed on Jim Vanderbilt and
barring the reimposition of a death sentence at any subsequent
sentencing proceeding. For the reasons assigned, we affirm in part
and vacate in part.

Background
On April 1, 1975, Vanderbilt, a former police officer,
kidnapped Katina Moyer, a 16-year-old girl, while she was in her
car waiting to pick up her schoolteacher mother. At gunpoint he
handcuffed Moyer and took her to his home, intending to rape her.
Noticing that Moyer was looking around the house intently, as if
trying to memorize everything she could about his house, he put her
in her auto and drove to a secluded spot outside Amarillo where he
fatally shot her in the head with his .357 pistol. He left her
body where it fell and drove to the outskirts of Amarillo where he
abandoned her car on the highway with the blinkers flashing and
hitched a ride back into town.
The Psychiatric Examination
In May, 1975 prior to the first trial, Vanderbilt's counsel
requested that Vanderbilt be examined by a psychiatrist. Counsel
had advised against the examination, but Vanderbilt insisted. The
motion requesting the examination did not specify the purposes.
The court granted the motion, but required that the results be
released to the state. We find no written order for the
examination in the record of the first trial. Vanderbilt was
examined over the course of two days by Drs. Kracke and Klein,
working under the supervision of Dr. Kenneth McTague. Dr. McTague
summarized their examinations in a letter informing the court of
their conclusion that Vanderbilt was sane and competent to stand
trial.
2

The First Trial
The district court described the evidence at trial as follows:
From the circumstantial evidence introduced at trial, the
jury could reasonably find that the applicant and the deceased
victim, Moyer, left the applicant's house in her automobile,
on the evening of her death, at approximately 4:30 p.m.; and
that they drove north on the Dumas Expressway out of the city
of Amarillo. Further, they could have found that the
applicant abandoned Moyer's car along the Dumas Expressway,
south of where Moyer was found shot, at approximately 6:00
p.m. In addition, experts testified at trial that Moyer had
bruises on her wrists which could have been caused by
handcuffs, and that the bullet with which she was killed was
a .38 or .357 luballoy, or copper-coated bullet. Other
testimony showed that the applicant possessed handcuffs with
traces of blood of the same type as Moyer's on the inside of
one of the cuffs.
In addition, the state introduced the testimony of two police
officers who heard Vanderbilt make an oral confession on the night
of his arrest. Officer Davis testified that "He said he wanted to
scare her, and she was telling him that she wouldn't tell on him.
He put his gun to the back of her head and cocked it. . . . He said
the gun went off and she fell to the ground." Officer Boydston's
account was similar. Also according to Officer Davis, Vanderbilt
stated that after killing Moyer he removed the handcuffs, drove to
the outskirts of Amarillo, abandoned her car on the highway with
its blinkers on, and then was picked up by a passing motorist.
Upon returning to town he went home, got his car, and drove around
"looking for another girl."
Based upon this evidence, Vanderbilt was found guilty of
capital murder. Neither the state nor Vanderbilt put on any
3

additional evidence during the penalty phase.1 The jury answered
"yes" to special issue number two, finding that Vanderbilt "would
commit criminal acts of violence that would constitute a continuing
threat to society."2 Vanderbilt was sentenced to death.
The Reversal
The Texas Court of Criminal Appeals overturned the conviction
for trial error related to the exclusion of evidence on the issue
of the voluntariness of Vanderbilt's confessions;3 the appellate
court did not address Vanderbilt's claim alleging insufficient
evidence of future dangerousness to support the death sentence.4
1 Under the Texas capital sentencing scheme in effect at
the time, the same jury that found a defendant guilty of capital
murder also had to determine, after a separate sentencing
hearing, whether to impose the death penalty. Tex. Code Crim
Proc. Ann. art. 37.071(b)(2) (Vernon 1981).
2 To determine whether the death penalty should be imposed,
the following special issues were submitted to the jury at the
conclusion of the evidence in the sentencing hearing:
(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 follow;
(2) whether there is a probability that the defendant
would commit criminal acts of violence that would
constitute a continuing threat to society; and
(3) if raised by the evidence, whether the conduct of
the defendant in killing the deceased was unreasonable
in response to the provocation, if any, by the
deceased.
Imposition of the death penalty was appropriate only if the jury
determined beyond a reasonable doubt that the questions must be
answered in the affirmative. Tex. Code. Crim. Proc. Ann. art.
37.071(b) and (c). In Vanderbilt's case, the third special issue
was inapplicable and was not submitted to the jury.
3 Vanderbilt v. State, 563 S.W.2d 590 (Tex.Crim.App. 1978)
(Vanderbilt I).
4 At the time the Texas Court of Criminal Appeals issued
its ruling, retrial of a defendant whose conviction was
4

The appellate court stated, however:
[W]e note that the State introduced no evidence at the
punishment stage of the trial. In the event of a re-trial, we
call attention to the recent case of Warren v. State, 562
S.W.2d 474, on sufficiency of the evidence to support an
affirmative finding to special issue No. 2 of Art. 37.071,
V.A.C.C.P.5
The Second Guilt Phase
Vanderbilt was retried, and was again convicted and sentenced
to death. The only new evidence presented during the second
trial's guilt phase was the testimony of Jerre Kris Tucker. She
testified that she had been sexually molested by Vanderbilt on
March 27, 1975. On that evening she had just gotten into her car
in a shopping mall parking lot after work when he opened the
driver's door of her car, produced a pistol, and demanded that she
move over. Vanderbilt got in the car, handcuffed her, drove to a
secluded construction area which was not occupied at that time of
night, and sexually molested her. He then released her a few
blocks from the abduction site and returned her auto to the mall
parking lot.
The Second Penalty Phase
During the second penalty phase, the state introduced five
witnesses who testified to Vanderbilt's bad reputation in the
community for being peaceful and law-abiding: four police officers
and Jerre Tucker. The state also introduced the testimony of
overturned for insufficient evidence was not considered to be
automatically barred by the double jeopardy clause. See United
States v. Bass, 490 F.2d 846 (5th Cir. 1974).
5 563 S.W.2d at 599 n.4.
5

Dr. McTague regarding Vanderbilt's future dangerousness. Defense
counsel was not informed that the state planned to have McTague
testify regarding Vanderbilt's future dangerousness until he was
called. There is also conflicting testimony regarding whether
Vanderbilt was given any Miranda-type warnings before the
examination, and if any were given, the extent of the warnings.
It is undisputed, however, that neither Vanderbilt nor his counsel
was informed that results of the examination could be used on the
issue of Vanderbilt's future dangerousness.
McTague testified that in his opinion, based upon the
examinations by him and Drs. Kracke and Klein, that Vanderbilt was
"extremely well controlled, well-guarded, extremely deliberate in
his actions," that "when he is affected by emotionality that he is
likely to be very impulsive," he was likely "to act without
thinking or without being aware of the consequences of his
behavior." In addition, McTague concluded that Vanderbilt had "no
conscience," had no "feeling of wrongness" regarding what he had
done, did not learn much from past experience, and had "a general
identity problem in the area of sexuality." On direct examination,
McTague was asked if, assuming that Vanderbilt kidnapped and
sexually assaulted one young woman and then five days later
kidnapped and shot and killed another, was he was likely to commit
future acts of violence. McTague responded: "The research
indicates that the best predictor of future behavior is past
behavior. If someone has done actions like you describe several
times, then it is increasing the likelihood that they may do it
6

again as opposed to not." McTague also responded on cross-
examination that based upon the "papers . . . assimilated four and
one half years ago" he found it probable that Vanderbilt would be
dangerous in the future.
The Habeas Relief
Following the second conviction, the appeals therefrom,6 and
exhaustion of state habeas proceedings, Vanderbilt filed a petition
for federal habeas corpus relief. He raised challenges to the use
of Dr. McTague's testimony during the penalty phase of the second
trial as violative of his fifth and sixth amendment rights, and
double jeopardy challenges asserting that the evidence in both the
guilt and penalty phases of the first trial was legally
insufficient. The district court partially granted the writ and
vacated the death sentence, after conducting an evidentiary hearing
and finding that the psychiatrist's testimony during the second
penalty phase violated Vanderbilt's fifth and sixth amendment
rights under Estelle v. Smith.7
The state moved for reconsideration, asking that the order
vacating the death sentence be made conditional upon allowing the
state the opportunity to commute the sentence or retry the penalty
phase. In addition, Vanderbilt moved for reconsideration of his
double jeopardy challenges. Upon reconsideration, following the
dictates of then-existing circuit precedent, the district court
6 Vanderbilt v. State, 629 S.W.2d 709 (Tex.Crim.App. 1981)
(Vanderbilt II), cert. denied, 456 U.S. 910 (1982).
7 451 U.S. 454 (1981).
7

engaged in a painstaking review of the sufficiency of the evidence
at the first trial and found that there was insufficient evidence
of future dangerousness presented during the first penalty phase.
As a result, the district court found that the death sentence
following the second trial was imposed in violation of the double
jeopardy clause. The state timely appealed.
ANALYSIS
I.
The Double Jeopardy Claim
In Burks v. United States,8 the Supreme Court held that the
double jeopardy clause prevents a retrial once a reviewing court
determines that the evidence at the first trial was insufficient.9
As the Court noted, "[t]he Double Jeopardy Clause forbids a second
trial for the purpose of affording the prosecution another
opportunity to supply evidence which it failed to muster in the
first proceeding."10
Under Bullington v. Missouri,11 the double jeopardy clause
applies to capital sentencing proceedings. Burks interacts with
Bullington to provide that if "an appellate court under Burks finds
the prosecution's evidence in support of the death penalty
insufficient, the defendant cannot again be made to face a possible
8 437 U.S. 1 (1978).
9 Id. at 18.
10 Id. at 11.
11 451 U.S. 430 (1981).
8

death sentence."12
In United States v. Sneed,13 we extended Burks to provide that
the double jeopardy clause bars retrial when the appellate court
reverses for trial error but refuses to consider a meritorious
insufficiency claim.14 In addition, we have held that, because of
double jeopardy implications, inquiry into insufficiency claims is
required on habeas review.15 Based upon Sneed and its progeny, the
court a` quo, after determining that there was insufficient
evidence of future dangerousness at the first trial to support the
death penalty, concluded that the state was prohibited from
pursuing the death penalty in the second trial.16
12 Jones v. Thigpen, 741 F.2d 805, 815 (5th Cir. 1984),
vacated on other grounds, 475 U.S. 1003 (1986). The Texas Court
of Criminal Appeals also has held that a capital defendant who
makes a meritorious challenge to the sufficiency of the evidence
in the trial phase may not be retried "wherein the State seeks
the death penalty," if the conviction is also reversed for trial
error in the guilt phase. Brasfield v. State, 600 S.W.2d 288,
298 (Tex.Crim.App. 1980), overruled on other grounds by, Janecka
v. State, 739 S.W.2d 813 (Tex.Crim.App. 1987).
13 705 F.2d 745 (5th Cir. 1983).
14 "Our refusal to address the sufficiency issue in the
first appeal is not a license for the government to 'make
repeated attempts to convict [the defendant] for [the] alleged
offense . . . . Whether or not the issue is addressed on appeal,
'the government must present sufficient evidence the first time
to get a second chance.'" 705 F.2d at 748 (footnotes omitted).
15 Cordova v. Lynaugh, 838 F.2d 764, 766 n.1 (5th Cir.),
cert. denied, 486 U.S. 1061 (1988); French v. Estelle, 692 F.2d
1021 (5th Cir. 1982), cert. denied, 461 U.S. 937 (1983).
16 The parties also address whether the application of
Burks and Sneed was appropriate under Teague v. Lane, 489 U.S.
288 (1989). Burks was decided in the interim between the
reversal of Vanderbilt's first conviction and the second trial.
Bullington was also decided before the second conviction became
final. As a result, there is no retroactivity problem. See
9

Shortly after the district court granted the writ in the
instant case, the panel opinion in United States v. Miller17 was
rendered. Miller held that the Supreme Court's decision in United
States v. Richardson18 implicitly overruled Sneed.19 Richardson held
that the double jeopardy clause does not prohibit a retrial
following a hung jury, whether or not the evidence in the original
trial was insufficient. Richardson reached that conclusion because
the Court found that, given the jury's inability to reach a
verdict, there had been no event which terminated the original
jeopardy; in the absence of a jeopardy terminating event, there was
no constitutional requirement to consider the sufficiency of the
evidence presented at the initial trial.20 Also embracing this
theory of continuing jeopardy, the Miller panel found that when a
conviction has been reversed for trial error there is no jeopardy
terminating event. As a result, the Miller court found that when
a conviction is reversed for trial error, there is no
constitutional requirement to consider the sufficiency of the
Tibbs v. Florida, 457 U.S. 31 (1982) ("We have applied Burks to
prosecutions that were not final on the date of that decision." -
- Burks applied when decided in interim between reversed
conviction and retrial).
17 952 F.2d 866 (5th Cir.), cert. denied sub nom. Huls v.
United States, 112 S.St. 3029 (1992).
18 468 U.S. 317 (1984).
19 952 F.2d at 871.
20 468 U.S. at 323-25.
10

evidence in the initial trial.21
The theory of continuing jeopardy embraced by both Richardson
and Miller has had an unsettled history in double jeopardy
jurisprudence. The concept was first introduced by Justice Holmes
dissenting in Kepner v. United States.22 Holmes' formulation has
never gained acceptance by a majority of the Supreme Court.23
Continuing jeopardy, however, "has occasionally been used to
explain why an accused who has secured the reversal of a conviction
on appeal may be retried for the same offense."24 Despite this use,
the Supreme Court has repeatedly noted that there is a better
explanation for allowing retrial:
It would be a high price indeed for society to pay were
every accused granted immunity from punishment because of
any defect sufficient to constitute reversible error in
the proceedings leading to conviction.25
Continuing jeopardy reappeared in 1984 in two Supreme Court
double jeopardy opinions: Richardson and Justices of Boston
Municipal Court v. Lydon.26 Lydon, for example, involved a two-
21 952 F.2d at 872.
22 195 U.S. 100 (1904). Justice Holmes "argued that there
was only one continuing jeopardy until the proceedings against
the accused had been finally resolved. He held to the view that
even if an accused was retried after the Government had obtained
reversal of an acquittal, the second trial was part of the
original proceeding." Price v. Georgia, 398 U.S. 323, 327
(1970).
23 Breed v. Jones, 421 U.S. 519, 534 (1975).
24 Id. at 534 (citations omitted).
25 Burks, 437 U.S. at 15 (quoting United States v. Tateo,
377 U.S. 463, 466 (1964)); Breed.
26 466 U.S. 294 (1984).
11

tiered system for criminal trials employed in Massachusetts. For
certain offenses, a defendant could opt for either the traditional
jury trial and attendant appellate review or for a bench trial. If
unsatisfied with the bench trial the defendant had a right to a de
novo jury trial without being required to point to any error in the
bench trial. There was no right to appellate review of the bench
trial, but the subsequent jury trial was subject to review. A
defendant, convicted in the initial bench trial contended that the
subsequent jury trial would violate double jeopardy because he
asserted that there was insufficient evidence presented in the
bench trial. The Court, in a divided opinion, held that the
defendant had experienced no jeopardy terminating event such as an
acquittal or an unreversed appellate finding of insufficiency, so
there was nothing preventing retrial.27 Similarly, in Richardson,
as noted earlier, the Court held that for lack of a jeopardy
terminating event, there was no constitutional requirement to
consider the sufficiency of the evidence presented in a trial which
results in a hung jury.28
27 Id. at 308-10. Justices Marshall and Brennan in a
concurring opinion noted that the continuing jeopardy analysis
begs the question: The defendant in Lydon presented a claim of
insufficiency, but the Court refused to consider the claim,
although its consideration could have led to such an appellate
determination which, in turn, could have constituted a jeopardy
terminating event. 466 U.S. at 319 (Brennan, J., concurring).
In fact, the district court and the First Circuit, considering
the matter on habeas, both determined that there was insufficient
evidence at the bench trial. The Supreme Court, however, neither
considered this determination by the First Circuit a jeopardy
terminating event nor reversed the sufficiency determination on
the merits.
28 468 U.S. at 325-26.
12

The State of Texas argues that in light of the intervening
Miller holding, the writ vacating the death sentence was improperly
granted. Miller holds that after Richardson, the Burks bar only
prevents retrial when the appellate court in fact reverses for
insufficient evidence. Texas argues that under the Miller holding,
it is now error for the district court, on habeas review, to
consider the sufficiency issue.
After Lydon and Richardson, it appears that there are only
three possible jeopardy terminating events: (1) an acquittal, (2)
a trial court determination of insufficiency leading to a directed
verdict of acquittal,29 and (3) an unreversed determination on
direct appeal that there was insufficient evidence to support the
conviction.30 In the absence of one of these events, a later
determination that there was insufficient evidence apparently will
not bar a retrial. It also appears that the double jeopardy claims
recognized on habeas review in French v. Estelle and Cordova v.
Lynaugh are no longer cognizable in light of Lydon, Richardson, and
Miller.
One must share the concern raised by the appellee and by
Justices Brennan and Marshall dissenting in Richardson, that if on
direct appeal, the court is presented with two valid challenges to
a conviction, one based upon trial error and another based upon
sufficiency, the defendant's double jeopardy rights may depend upon
the whim of the appellate court in determining the ground for
29 Hudson v. Louisiana, 450 U.S. 40 (1981).
30 Burks.
13

reversal.31 According to Miller, when an appellate court is
presented with two such challenges, it is "clearly the better
practice" to dispose of a properly presented claim of
insufficiency, but it is not mandated by the double jeopardy
clause.32 Vanderbilt argues that by preventing consideration of an
insufficiency claim by courts other than the first appellate court,
Miller denies a capital defendant's right to "meaningful appellate
review in ensuring that the death penalty is not imposed
arbitrarily."33 Such concern is particularly apt in this case;
although the Texas Court of Criminal Appeals did not reach
Vanderbilt's insufficiency claim regarding the first penalty phase,
the court suggested in dicta that the evidence in fact may have
been insufficient.34 Lydon, Richardson, and Miller require that we
ignore the concerns voiced by the Texas Court of Criminal Appeals
in its initial ruling and the determination by our trial judge that
31 468 U.S. at 327 (Brennan, J., dissenting).
32 952 F.2d at 874.
33 Parker v. Dugger, 498 U.S. 308, ___, 111 S.Ct. 731, 739
(1991).
34 The court directed the trial court's attention to Warren
v. State, 562 S.W.2d 474 (Tex.Crim.App. 1978), a case in which
the Texas court found insufficient evidence of future
dangerousness when the prosecution relied only upon the evidence
of the offense itself -- the murder of a homeowner who surprised
the defendant in the course of a burglary -- which was deemed
"not a calculated act," and the defendant had only a single prior
conviction for burglary. The evidence presented in Vanderbilt's
first trial was quite similar to that presented in Warren,
suggesting that the Texas Court of Criminal Appeals, while
disinclined to engage in a full sufficiency analysis, was
concerned that the evidence at Vanderbilt's first trial was
insufficient to prove future dangerousness.
14

there was insufficient evidence to support the death sentence
imposed following Vanderbilt's first trial. Albeit with
significant reservations, we are constrained to follow circuit
precedent, absent legislation, intervening Supreme Court teachings
or an en banc holding to the contrary. Accordingly, the district
court's order, to the extent that it prohibits the state from
sentencing Vanderbilt to death in a subsequent sentencing hearing,
must be vacated.
2.
The Fifth and Sixth Amendment Claims
Fifth Amendment
The state contends that the district court erred in finding
that Dr. McTague's testimony violated Vanderbilt's fifth amendment
rights as articulated in Estelle v. Smith.35 We review the district
court's findings of fact for clear error, but consider issues of
law de novo.36
Estelle held that the state's use, during the penalty phase of
a capital trial, of the testimony of a psychiatrist who performed
a court-ordered competency examination on the defendant, violated
the defendant's fifth amendment rights. The fifth amendment
violation arose because the defendant was not informed that
statements made during the examination could be used during the
penalty phase.
The state attempts to distinguish Estelle on two grounds: (1)
35 451 U.S. 454 (1981).
36 Barnard v. Collins, 958 F.2d 634 (5th Cir. 1992), cert.
denied, 113 S.Ct. 990 (1993).
15

in Estelle the examination was conducted at the court's direction,
not at the defendant's request; and (2) in Estelle the examination
was specifically limited to competency while Vanderbilt's request
did not specify the purposes of the examination. These are
distinctions without difference.
We disposed of the first argument in Battie v. Estelle,37
shortly after Estelle was decided. If a defendant requests an
examination on the issue of future dangerousness or presents
psychiatric evidence at trial, the defendant may be deemed to have
waived the fifth amendment privilege.38 Vanderbilt did neither.
As in the case at bar, Battie's defense counsel requested a
competency and sanity psychiatric examination of his client. The
trial court granted the request and appointed two doctors to
examine Battie. Battie's counsel did not introduce psychiatric
testimony at trial, but the state used the doctors' testimony at
trial on the issue of future dangerousness. The Battie court
determined that examination by a court-appointed psychiatrist
amounted to custodial interrogation for purposes of Miranda,39 and
concluded that "the fact that the defense requested the examination
does not obviate the necessity for giving the Miranda warnings
where the defense did not request such an examination on the
37 655 F.2d 692 (5th Cir. 1981).
38 See Buchanan v. Kentucky, 483 U.S. 402 (1987); Schneider
v. Lynaugh, 835 F.2d 570 (5th Cir. 1988).
39 655 F.2d at 699-700.
16

question of future dangerousness."40
The state's second argument is disposed of based upon the
factual findings made by the district court. While it is true that
Vanderbilt's counsel's request for the psychiatric examination did
not specify the purposes of the examination, the district court
concluded as a matter of fact that it was, in effect, a request for
a competency and sanity examination. This conclusion is fully
supported by the evidence of record. For example, both Drs. Kracke
and Klein testified that they understood the examination to be
limited to the issues of sanity and competence.41 Kracke also
testified that he received a written order from the trial judge to
perform a sanity and competency examination.42 Also, at the hearing
on Vanderbilt's motion to appoint a psychiatrist to conduct the
examination, the prosecutor complained that such appointment was
inappropriate because there was no "reason for this court to doubt
the defendant's competency to stand trial or his sanity at the time
of the commission of the offense." Thus, the district court's
finding that this examination was clearly understood by all parties
to be limited to the issues of sanity and competence is not clearly
40 655 F.2d at 702; accord Wilkens v. State, 847 S.W.2d 547
(Tex.Crim.App. 1992).
41 In fact, neither was aware that future dangerousness was
even an issue in capital sentencing.
42 Although that order is not in the record of any of
Vanderbilt's proceedings, the district court was entitled to
credit Dr. Kracke's testimony.
17

erroneous.43
Finally, the state contends that the interpretation of Estelle
advanced by the court in Battie and the district court hereinSQ
requiring a Miranda warning that the examination results may be
used at sentencingSQshould be reconsidered in light of Colorado v.
Spring44 and Oregon v. Elstad.45 In both Spring and Elstad the Court
emphasized that a knowing and voluntary waiver of Miranda rights
does not require that the defendant understand every possible
consequence of the decision to waive the right.46
The application of Miranda in the setting of a psychiatric
examination is quite different from its application in an ordinary
police interrogation. For one thing, the incriminating character
of particular answers or actions may not be readily apparent to the
defendant subject to a psychiatric examination. We note that as
recently as 1989, after both Spring and Elstad, the Supreme Court
in Powell v. Texas47 characterized Estelle's teaching as follows:
In Estelle v. Smith we held that a capital defendant's
Fifth
Amendment
right
against
compelled
self-
incrimination precludes the state from subjecting him to
43 In effect, the district court recognized that although
defense counsel made a "global" request, the universe of
reasonably foreseeable possibilities for such an examination was
limited to the issues of sanity and competence.
44 479 U.S. 564 (1987).
45 470 U.S. 298 (1985).
46 Elstad (need not inform defendant that prior un-
Mirandized confession could not be used against him); Spring
(need not inform the defendant of the specific crime about which
he will be questioned).
47 492 U.S. 680 (1989).
18

a psychiatric examination concerning future dangerousness
without first informing the defendant that he has the
right to remain silent and that anything he says can be
used against him at a sentencing proceeding.48
Accordingly, we decline to hold that Spring and Elstad implicitly
overrule Battie or limit Estelle. The district court properly
concluded that failure to inform Vanderbilt that the psychiatric
examination could be used against him at the sentencing phase on
the issue of future dangerousness, and the subsequent use of the
testimony against him for that purpose, was a violation of his
fifth amendment rights.
Sixth Amendment
Estelle v. Smith also taught that when defense counsel is not
informed that the psychiatric examination of his client will be
used by the state on the issue of future dangerousness, the client
is deprived of the "guiding hand" of counsel in determining whether
and to what extent to cooperate with the examination.
The state argues that because the motion for an examination
did not specify the purposes of the examination, defense counsel
was on notice that the examination could encompass the issue of
future dangerousness. Again, this ignores the district court's
finding that the examination was limited to sanity and
competencySQa finding which we have concluded was not clearly
erroneous.
The Supreme Court consistently has recognized the importance
of a capital defendant's right to consult defense counsel regarding
48 492 U.S. at 681 (emphasis supplied).
19

possible psychiatric examination. "[F]or a defendant charged with
a capital crime, the decision whether to submit to a psychiatric
examination designed to determine his future dangerousness is
'literally a life or death matter' which the defendant should not
be required to face without 'the guiding hand of counsel.'"49 For
consultation with counsel to be effective, it "must be based on
counsel's being informed about the scope and nature of the
proceeding."50 When counsel does not know that the court-ordered
psychiatric examination of the defendant will entail the issue of
future dangerousness, then the defendant is deprived of the
"guiding hand" of counsel.51 "[I]t certainly is not unfair to
require the state to provide counsel with notice before examining
the defendant concerning future dangerousness."52
The district court noted that from the record of the
evidentiary hearing it is evident that in 1975, when the
psychiatric examination of Vanderbilt was conducted, no one
anticipated that the examination would encompass the issue of
future dangerousness. The district court suggested that to infer,
years after the fact, that Vanderbilt validly waived any fifth or
sixth amendment objections arising from that examination is "highly
dubious." We agree. Vanderbilt's counsel, unlike counsel in
49 Satterwhite v. Texas, 486 U.S. 249, 254 (1988)
(citations omitted).
50 Buchanan, 483 U.S. at 424.
51 Powell, 492 U.S. at 685.
52 Id.
20

Buchanan, did not have adequate information regarding the scope of
the psychiatric examination; accordingly, Vanderbilt was deprived
of his sixth amendment right to counsel when the competency and
sanity examination also encompassed the issue of future
dangerousness.
Harmless Error Analysis
In Satterwhite, the Court held that harmless error analysis
applies to the admission of psychiatrist testimony in violation of
the sixth amendment, as set out in Estelle.53 The district court
here found that under the Chapman v. California54 harmless error
standard,55 the error in this case was not harmless.
The Supreme Court recently held that Chapman does not apply on
habeas corpus review;56 instead, claims on habeas are subject to the
harmless error analysis in Kotteakos v. United States.57 "The test
under Kotteakos is whether the error 'had substantial and injurious
effect or influence in determining the jury's verdict.'"58
At the penalty phase, the prosecution's case consisted of the
testimony of five witnesses regarding Vanderbilt's bad reputation
53 486 U.S. at 258.
54 386 U.S. 18 (1967).
55 Under Chapman the standard for determining whether a
conviction must be set aside due to federal constitutional error
is whether the error was "harmless beyond a reasonable doubt."
386 U.S. at 24.
56 Brecht v. Abrahamson, 113 S.Ct. 1710 (1993).
57 328 U.S. 750 (1946).
58 Brecht, 113 S.Ct. at 1722 (quoting Kotteakos, 328 U.S.
at 776).
21

in the community for being a peaceful and law-abiding citizen:
four police officers involved in the investigation of Moyer's
murder, and Jerre Tucker. The district court noted that Dr.
McTague's testimony "was approximately four times the combined
length of the other five states' witnesses." This necessarily
suggests that McTague's testimony would have substantial impact on
the jury.59
The state contends, however, that Dr. McTague's conclusion
that Vanderbilt posed a threat to society was based not upon the
1975 examination, but upon a hypothetical question regarding his
past behavior. Like the district court, we find that Dr. McTague's
testimony must be viewed as a whole. The "hypothetical" question
was presented to Dr. McTague only after he had an opportunity to
testify, at great length, about his perceptions regarding
Vanderbilt. He described him as "controlled, well-guarded,"
"extremely deliberate," likely "to act without thinking," unaware
of "the consequences of his behavior," with "no conscience," and
with sexual identity problems; or as the district court aptly
characterized, he depicted Vanderbilt "as a remorseless, extremely
impulsive, virtually unreformable man likely to react recklessly
and uncontrollably to emotional stress." Following this build up,
the prosecutor posed the hypothetical that, assuming Vanderbilt
59 The district court's determination and that apparently
of the Texas Court of Criminal Appeals, that there was
insufficient evidence at the first penalty phase, though rendered
moot by our double jeopardy analysis, demonstrates that the state
would have to rely on something more than Vanderbilt's offense,
itself, to establish, beyond a reasonable doubt, that he posed a
threat of future dangerousness.
22

kidnapped and sexually assaulted one young woman then five days
later kidnapped and shot and killed another, was he likely to be
dangerous in the future? Dr. McTague responded that past behavior
was the best indicator of future behavior, and such assumed conduct
would increase the likelihood of future dangerousness.
We are unwilling to accept the state's contention that
Dr. McTague's conclusion regarding future dangerousness, and the
damaging impact of his testimony, was limited to this statement.
Certainly, the jury could have formed its opinion regarding future
dangerousness, at least in part, from its own understanding of the
character traits attributed to Vanderbilt by this psychiatric
expert. In Satterwhite, the Court found harmful error, albeit
under the Chapman standard, from a psychiatrist's testimony on
future dangerousness in violation of Estelle, when that testimony
was a much less significant part of the evidence presented in the
penalty phase. In Satterwhite the evidence, other than the
psychiatrist's testimony, included the defendants four prior felony
convictions, testimony by his former step-father that Satterwhite
once shot him during an argument, eight character witnesses of his
bad reputation for being a law-abiding citizen, and a
psychologist's testimony that he may be a continuing threat to
society. In that context, the Court found harmful error.60
The district court in this case, after reviewing the record of
the second sentencing phase, found that Dr. McTague's testimony was
a substantial part of the state's case. We agree. We conclude
60
486 at 259-60.
23

that Vanderbilt's claim satisfied the Kotteakos harmless error
standard. We think it would strain credulity to conclude that Dr.
McTague's testimony, which was quite lengthy and bore the
imprimatur of an expert's opinion, did not have a substantial,
injurious effect on the outcome of Vanderbilt's second penalty
phase.
It is with exceeding reluctance that we conclude that the
State of Texas may now try for a third time to present sufficient
competent evidence to establish Jim Vanderbilt's future
dangerousness, primarily because we agree with our district judge
and apparently the Texas Court of Criminal Appeals that the state
failed to do so the first time. We AFFIRM the district court's
grant of the writ insofar as it vacates Vanderbilt's death
sentence, but to the extent that the district court held that the
state may not reimpose the death penalty following a proper, third
sentencing hearing warranting such, we are obliged to direct that
the order be VACATED.
AFFIRMED IN PART, VACATED IN PART.
EMILIO M. GARZA, Circuit Judge, concurring specially:
"The Fifth Amendment privilege [against compelled self-
incrimination] . . . is fulfilled only when a criminal defendant is
guaranteed the right `to remain silent unless he chooses to speak
in the unfettered exercise of his own will, and to suffer no
penalty . . . for such silence.'" Estelle v. Smith, 451 U.S. 454,
24

467-68, 101 S. Ct. 1866, 1875, 68 L. Ed. 2d 359 (1981) (quoting
Malloy v. Hogan, 378 U.S. 1, 8, 84 S. Ct. 1489, 1493-94, 12 L. Ed.
2d 653 (1964)). Vanderbilt insisted, against the advice of
counsel, upon submitting to a psychiatric evaluation, even though
he was informed that the results of the evaluation would be made
available to the prosecutor. Vanderbilt was the victim of neither
coercion nor deception, but instead "ch[ose] to speak in the
unfettered exercise of his own will."
I agree with the majority that, under our decision in Battie
v. Estelle, 655 F.2d 692 (1981), "the fact that the defense
requested the examination does not obviate the necessity for giving
the Miranda warnings where the defense did not request such an
examination on the question of future dangerousness." See id. at
702. However, I write separately to express my view that Battie,
insofar as it affords relief to a criminal defendant who has spoken
in the unfettered exercise of his own will, against the advice of
counsel, is adrift from the fundamental interests protected by the
Fifth Amendment, Miranda, and Estelle. I concur specially in Part
II of the majority's opinion.