Barber v. State

• Decision Date: 14 September 1988
• Docket Number: No. 68905,68905
• Parties: Danny Lee BARBER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 359

757 S.W.2d 359

Danny Lee BARBER, Appellant, v. The STATE of Texas, Appellee.

No. 68905.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 14, 1988.

Melvyn Carson Bruder, Lawrence B. Mitchell, Dallas, for appellant.

Henry Wade, Former Dist. Atty., John Vance, Dist. Atty., and Kathi Alyce Drew, Winfield Scott, Paul Macaluso, Doug Moulder and Kelly Loving, Asst. Dist. Attys. Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION AFTER REMAND

ONION, Presiding Judge.

On original submission appellant contended, inter alia, that the trial court erred in failing to empanel a separate jury to determine his competency to stand trial. We disposed of the other points of error and abated the appeal and remanded the cause to the trial court to empanel a jury to determine whether appellant was competent to stand trial in 1980 when he was convicted of capital murder. Barber v. State, 737 S.W.2d 824 (Tex.Cr.App.1987).

Upon remand the trial court determined a retrospective hearing was possible and empaneled a jury which returned its verdict that appellant was competent to stand trial in 1980. Appellant now raises three points of error in connection with the conduct of the jury trial on competency. He does not challenge the sufficiency of the evidence to sustain the verdict.

Initially, appellant contends the trial court erred in denying his motion for mistrial when on cross-examination a State's witness gave an unresponsive answer which was so inflammatory and prejudicial that he (appellant) did not receive a fair competency hearing.

A competency hearing is a separate and independent hearing before a different jury than the one on the trial on the merits. White v. State, 591 S.W.2d 851 (Tex.Cr.App.1979). The purpose of a separate competency hearing is to allow determination of competency of the defendant to stand trial uncluttered by evidence of the offense itself. Basham v. State, 608 S.W.2d 677 (Tex.Cr.App.1980).

Guilt or innocence of the defendant is not an issue in a competency to stand trial hearing, and it is improper to introduce evidence of the offense itself. Goodman v. State, 701 S.W.2d 850, 862 (Tex.Cr.App.1985); Callaway v. State, 594 S.W.2d 440 (Tex.Cr.App.1980); Penry v. State, 691 S.W.2d 636 (Tex.Cr.App.1985), cert. den., 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986); McBride v. State, 655 S.W.2d 280 (Tex.App.-Houston [14th Dist.] 1983); Parker v. State, 667 S.W.2d 185 (Tex.App.-Texarkana 1983), review ref'd, cert. den. 469 U.S. 1085, 105 S.Ct. 590, 83 L.Ed.2d 699 (1984), review ref'd. Evidence of the crime may adversely affect the jury's determination of the defendant's competency to stand trial by confusing the jurors or prejudicing them against the defendant. Not every mention of the crime itself will be prejudicial; to necessitate reversal evidence of the offense brought to the attention of the competency jury must be of such nature as to deny the accused a fair trial and impartial determination of his competency. Brandon v. State, 599 S.W.2d 567, 580 (Tex.Cr.App.1980), vacated on other grounds, 453 U.S. 902, 101 S.Ct. 3134, 69 L.Ed.2d 988 (1981); Penry, supra; Calloway, supra; McBride, supra; Parker, supra.

With this background we observe that an effort was made by the trial court and the parties not to reveal to the competency jury the nature of the offense, the details or facts of the offense or the punishment. The jury did know from the evidence, however, that appellant had been tried in 1980, that the offense was a "serious offense," and that the Court of Criminal Appeals had ordered the competency hearing.

After the appellant rested, having had the burden in such a hearing (Article 46.02, V.A.C.C.P.), the State called the Honorable James Zimmerman, who as a district judge, had presided at appellant's 1980 trial. Judge Zimmerman, now in the private practice of law, testified that he had occasion at the trial to observe appellant, and his interaction with his attorneys, and that he had briefly conversed with the appellant when questions were directed to appellant personally. He related that he had, at the request of appellant's counsel, appointed two psychiatrists as disinterested experts to examine appellant to determine his competency to stand trial, that Dr. Charles Lett had been appointed upon the recommendation of one of appellant's counsel, and that he had also appointed Dr. Clay Griffith. Judge Zimmerman related that during the trial (in absence of the jury) he had heard both doctors testify, and in response to the State's questions on direct examination Judge Zimmerman expressed his opinion that appellant was competent to stand trial in 1980 under the appropriate legal standard.

On cross-examination appellant sought to discredit the witness. After interrogating the judge about the appointment of psychiatrists generally, and more particularly in the instant case, the witness was asked if it was his understanding of the law that a district judge could appoint a psychiatrist "for the State of Texas." The witness stated that he was "not certain, frankly," because the State, in his experience usually offered a psychiatrist as a witness without the necessity of an appointment. Counsel then read to the witness from Article 46.02, § 3, V.A.C.C.P., in the presence of the jury to demonstrate the right of the prosecutor to move for the appointment of a disinterested expert. Counsel then tried to show that Judge Zimmerman's contacts during trial with the appellant had been extremely limited. The complained of answer as being unresponsive followed. The record reflects:

"Q ... Now, in Mr. Barber's trial probably by habit and custom as most trials you are, of course, while the trial is going on constantly aware of questions and parties and that the evidence that is being introduced.

"A Yes, sir.

"Q At the same time, did you not, sir, have a habit and custom, as a very experienced trial judge, also doing some other work at your bench while the events were occurring if they didn't require your direct and intense supervision at that time?

"A Not in a capital murder case.

"MR. MITCHELL (appellant's counsel): Excuse me, Judge, may we approach the bench."

Appellant's objection that the answer was non-responsive and prejudicial was sustained, and upon request the jury was instructed to disregard the last answer and not to consider it for any purpose whatsoever in its deliberations. Cross-examination of the witness ceased at this point. Appellant's mistrial motion was subsequently denied.

It must be remembered that the answer referred only to the nature of the offense, not to the facts of the case. Goodman v. State, 701 S.W.2d 850, 863 (Tex.Cr.App.1985), held that "the one use of the term 'capital murder' did not so confuse or prejudice the jury against appellant that he was deprived of a fair determination of the matter of his competency to stand trial." (Emphasis supplied.)

Appellant acknowledges Goodman, but argues that the competency hearing in Goodman was conducted at or about the time of the trial, and the competency jury there could not have reasonably concluded Goodman had been convicted of capital murder, whereas the same was not true in the instant case. We know of no authority that the mere mention in a post-conviction competency hearing of the nature of the trial previously conducted calls for a mistrial.

In the manner in which counsel was conducting the cross-examination he should have known from the very beginning that he was skating on skinny ice. The answer given was not unresponsive to the question asked. Counsel should not have expected an unqualified affirmative answer to the particular question given the circumstances. It is here observed that the court cured any possible error by sustaining the objection and instructing the jury to disregard. Appellant's point of error is overruled. Furtick v. State, 592 S.W.2d 616 (Tex.Cr.App.1980). The court did not err in overruling the motion for mistrial.

In his second point of error concerning the competency hearing, appellant contends the trial court erred in overruling his objection to the court's charge on the burden of proof which deprived him of due process of law and a "fair trial as guaranteed by the Fourteenth Amendment to the Constitution of the United States."

Appellant contends that the burden of proving his incompetency by a preponderance of the evidence should not have been his because of the delay of some seven and a half years between his trial and the post-conviction competency hearing. Appellant recognizes the burden of proof in a "regular" competency hearing is on the defendant and not the State, citing White v. State, 591 S.W.2d 851, 854 (Tex.Cr.App.1980), ¹ but contends the delay through no fault of his should shift to the State (beyond a reasonable doubt) because of the passage of time. Appellant argues federal due process of law was violated because of the difficulties in the discovery of witnesses, etc. He cites no authorities calling for a shift in the burden, much less for the reason stated. As pointed out in the opinion on original submission, the trial judge carefully followed the case law of this Court interpreting Article 46.02, V.A.C.C.P., extant at the time, in passing on the issue of competency when raised during trial. The remand resulted from a later decision of this Court. See Williams v. State, 663 S.W.2d 832 (Tex.Cr.App.1984), which was applied retroactively. If Williams had been decided otherwise or had not been applied retroactively appellant would be in no position to complain. The trial court did not err in overruling the objection to the court's charge at the competency hearing. The point of error is overruled.

In his third and last point of error concerning the competency hearing appellant complains of the admission, over objection, of the testimony of Dr. Clay Griffith derived in part from a post-indictment interview with the...