Abdnor v. State
| Decision Date | 16 August 1988 |
| Docket Number | No. 05-81-01289-CR,05-81-01289-CR |
| Citation | 756 S.W.2d 815 |
| Parties | John Howard ABDNOR, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Ronald L. Goranson, Dallas, for appellant.
Pamela Sullivan Berdanier, Dallas, for appellee.
Before ENOCH, C.J., and ROWE and HECHT, JJ.
ON REMAND FROM COURT OF CRIMINAL APPEALS
John Howard Abdnor was convicted of murder and sentenced to life imprisonment in November of 1981. Abdnor then litigated, over the next five and one-half years, to be declared an indigent for the purpose of having his competency hearing and trial transcripts prepared at county expense. See Abdnor v. Ovard, 635 S.W.2d 864 (Tex.App.--Dallas 1982), aff'd, 653 S.W.2d 793 (Tex.Crim.App.1983); Abdnor v. State, 687 S.W.2d 14 (Tex.App.--Dallas 1984), rev'd, 712 S.W.2d 136 (Tex.Crim.App.1986). Abdnor's request was granted on May 27, 1987. This appeal on the merits of his case then commenced. In fourteen points of error, Abdnor cites error in the trial below because of violations of Articles 46.02, section 3(g) and 38.22 of the Texas Code of Criminal Procedure; violations of due course and due process of law; violation of the mental health privilege; the admission of an extraneous offense; failure by the trial court to admit admissions by the State; prosecutorial misconduct; and improper argument by the State. Finding no merit in any of these points, we affirm the conviction.
Abdnor's trial took seven weeks to complete; the statement of facts in the case fills forty volumes and 7,000 pages. The record reveals that Abdnor killed a nurse with whom he had become romantically involved during a stay in a psychiatric hospital. Trial evidence established that the woman was shot four times at close range with a Marlin 30.30 rifle while in Abdnor's apartment. Abdnor was apprehended by Dallas County deputy sheriffs in his apartment soon after the shooting.
After determination by a jury that Abdnor was competent to stand trial, Abdnor's trial proceeded. Because Abdnor asserted insanity as an affirmative defense, the jury in the trial on the merits heard testimony from several psychiatric experts and lay witnesses on the insanity issue. At the conclusion of the evidence, the jury returned a guilty verdict and later sentenced Abdnor to life imprisonment. Article 46.02, section 3(g)
In point of error one, Abdnor contends that the trial court erred in permitting the State to use statements he made during his pretrial competency examination to Dr. Griffith, a psychiatrist. Abdnor complains that the State improperly used these statements in two ways: first, in offering the statements themselves through Dr. Griffith's testimony; and second, in allowing Dr. Griffith to give his opinion, based upon those statements, that Abdnor was sane at the time of the shooting. We conclude that the trial court erred in allowing the State to use Abdnor's statements made during his competency examination, but that such error was harmless.
Article 46.02, section 3(g) of the Texas Code of Criminal Procedure states:
No statement made by the defendant during the examination or hearing on his competency to stand trial may be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding.
Ballard v. State, 519 S.W.2d 426 (Tex.Crim.App.1975) (opinion on rehearing), construed a predecessor statute, former section 2(f)(4) of article 46.02. Act of June 17, 1967, ch. 659, § 33, 1967 Tex.Gen.Laws 1732, 1750. The court held that Ballard, 519 S.W.2d at 429 (emphasis in text).
Abdnor first complains that article 46.02, section 3(g) was violated when the trial court allowed Dr. Griffith, called as an expert witness for the State, to repeat, over Abdnor's objection, statements Abdnor made to him during his examination to determine Abdnor's competency to stand trial. Specifically, Dr. Griffith testified as follows to statements made by Abdnor during that examination:
Q [By the State's Counsel]: ... Did you move into what the Defendant told you had occurred on the night that Janis Ballew was shot and killed, and her life was ended?
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A [By Dr. Griffith]: He said,
Then, he described the rifle to me.
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He said it was a 30.30 that he had never hunted with.
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Well, he said it had been in the family for several years.
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Q Did you talk to the Defendant about what had occurred prior to the actual shooting of the victim; in other words, earlier than [sic] evening, where they were, how she happened to get over there?
A Yes. He said that earlier in the evening, she had
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Q Did he tell you what Janis Ballew did when she got there?
A Yes. He said she started arguing, which I believe we've mentioned, and said she pulled off her clothes, or part of her clothes, and wanted to get in bed.
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Q Did you ask him--moving down into the actual shooting, did you ask him exactly--he told you, originally, I believe you said, that they got into an argument, and he got the gun, and the next thing he knew, that she had blood all over her; is that right?
A Correct.
Q Now, I'll ask you if he later told you whether or not she had been shot, and, if so, how many times he shot her.
A Yes; he went ahead with the--what he was telling me; he said he shot her five times.
The next day following this testimony by Dr. Griffith, after further considering Abdnor's objection, the trial court reversed itself, sustained Abdnor's objection, and instructed the jury to disregard the testimony.
Although the trial court erred in admitting this testimony by Dr. Griffith in violation of article 46.02, section 3(g), essentially the same evidence was properly admitted through other witnesses. In Caballero v. State, 587 S.W.2d 741, 743-744 (Tex.Crim.App.1979), the court held that although the trial court had erred in admitting a psychologist's testimony about his conversation with the accused during a competency examination, the error was harmless because the accused had confessed to others the details of his wife's murder.
In the instant case, a friend of Abdnor's testified that he talked with Abdnor shortly before the shooting. When asked whether Abdnor had expressed any feelings toward the victim, the witness testified:
He told me that she had an abortion; that he was mad as hell, and he said, "That bitch has really screwed up this time." And I tried to calm him down, and talk to him.
He said,
Abdnor's ex-wife testified that shortly after the shooting Abdnor called and said, "I just called to tell you I killed a f______ flight nurse." She testified that she asked Abdnor where the nurse was, and he said, "The f______ bitch is lying up against the door." She then testified:
Q [By the State's Counsel]: Did he tell you why he had shot her?
A He said, "The f______ bitch just kept yelling at me, and I told her to shut up, and she wouldn't shut up."
And he said ... she wanted him to marry her, and he wasn't going to marry her.
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Q Did he ... say anything about whether this would have happened if you had stayed with him?
A He said, "... this would have never happened if you hadn't divorced me." He said, "If you would have just stood behind me and supported me ... this would never have happened."
Inasmuch as testimony similar to Dr. Griffith's was properly admitted through other witnesses, we find that the error in admitting Dr. Griffith's testimony was harmless. If his testimony added anything to the testimony of others, it was at most some degree of credence. Any harm was cured by the trial court's instruction to the jury to disregard the testimony.
Second, Abdnor complains that article 46.02, section 3(g) was also violated when the trial court allowed Dr. Griffith to use Abdnor's statements as a basis for his opinion that Abdnor was sane at the time of the killing. Specifically, Dr. Griffith testified, over Abdnor's objection:
Q ... With respect to your original examination ... of this Defendant, for the purpose of competency, did you have occasion, during that competency hearing, to speak to him; is that correct, and him speak to you?
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A Yes.
Q Based upon those conversations and your examination of the Defendant, is it your opinion that on that date, as well as [the date of the killing], that the Defendant was not suffering from a mental disease or defect--paranoid schizophrenia--such that it caused him not to know the difference between right or wrong, or caused him not to be able to conform his conduct at the time to the requirements of the law, if he wanted to?
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A He did not have a mental illness; he was not paranoid schizophrenic.
(Emphasis added.) Abdnor asserts that admission of this testimony placed him in the untenable position of having to choose between eliciting from Dr. Griffith what statements Abdnor made that supported his opinion and thus in effect offering those statements himself when they would otherwise be inadmissible, or foregoing cross-examination as to the basis of Dr. Griffith's opinion. For this reason, Abdnor claims he was harmed by the State's use of those statements in violation of article 46.02, section 3(g).
Although we agree with Abdnor...
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