                  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.
