Barber v. State

• Decision Date: 16 September 1987
• Docket Number: No. 68905,68905
• Citation: 737 S.W.2d 824
• Parties: Danny Lee BARBER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 824

737 S.W.2d 824

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

No. 68905.

Court of Criminal Appeals of Texas En Banc.

Sept. 16, 1987.

Melvyn Carson Bruder, Dallas, for appellant.

Henry Wade, Dist. Atty. and Karen Chilton Beverly, Doug Moulder, Kelly Loving and Paul Macaluso, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

Appellant was convicted of capital murder under V.T.C.A., Penal Code, § 19.03. After the jury found appellant guilty and affirmatively answered the three special issues submitted pursuant to Article 37.071, V.A.C.C.P., the court assessed punishment at death. V.T.C.A., Penal Code, § 12.31.

Appellant does not challenge the sufficiency of the evidence to sustain the finding of guilt or the affirmative answers to the special issues. The evidence clearly shows that appellant killed Janie Ingram during the course of a burglary of a habitation.

Appellant raises nine points of error. He contends (1) that the trial court erred in failing to empanel a separate jury to determine his competency to stand trial; (2) that the trial court erred in admitting into evidence his written confession which was the fruit of an illegal arrest; (3) the court erred in failing to sustain a challenge for cause to venireman Henry Dove; (4) and (5) that in two instances the court erred in authorizing the jury to convict upon a theory not plead in the indictment or permitted by law; (6), (7), (8) and (9) that the court erred in admitting at the penalty stage of the trial confessions to four unadjudicated extraneous offenses including three other murders and one attempted murder charge.

At the outset appellant contends that the trial court erred in failing to empanel a jury to determine the issue of his competency to stand trial.

The trial court granted appellant's pretrial motion for psychiatric examination and appointed Dr. Charles Lett in accordance with appellant's request, and also appointed Dr. Clay Griffith to examine appellant. At the same time the court noted on the pretrial motion to try the accused on the issue of competency alone "carried per [defense attorney's initials]...."

After the jury in this capital murder prosecution was selected and sworn after over two weeks of voir dire examination, and after jeopardy had attached, appellant's counsel brought to the court's attention that Dr. Lett had filed a report that very day concluding, after changing his mind, that the appellant was incompetent to stand trial. An hour later the court undertook to conduct a hearing. See Article 46.02, § 2(a) and (b), V.A.C.C.P. ¹

Dr. Lett testified that appellant was a schizophrenia paranoid type, that because of his childhood, and his disturbed, illogical contradictory and delusional thinking, he was incompetent to stand trial, and unable to communicate with his attorney in a rational and factual manner. ² In reaching his diagnosis Dr. Lett relied on the fact that appellant did not demonstrate "much guilt, not that much remorse, not that much concern about the predicament he was in, nor fear of what was going to happen to him. It is what we call an impoverished or a flattened affect which is a key characteristic of a schizophrenic."

In pointing out appellant's thinking was illogical Dr. Lett said appellant told him that he had gone to Lake Ray Hubbard and shot fish with a bow and arrow, and he (Dr. Lett) found appellant's thinking delusional because he (Dr. Lett) did not believe he could actually shoot fish, piercing them with an arrow. The doctor's conclusion was further based on the fact that appellant told him that he aimed a rifle at a man, 200 or 300 yards away, and with his eyes closed, shot the man in the shoulder. His conclusion would not be changed even if told appellant had in fact shot an individual from the distance described with a 30.06 rifle. Another factor in determining appellant was delusional Dr. Lett related was that appellant told him that after the man was shot a police helicopter appeared overhead and that appellant found his car surrounded by police who searched the car but not the unlocked trunk. The doctor testified, "I have more faith in the Dallas Police than thinking if they were doing the search, they would not have searched his trunk which was wide open and which did conceal two guns and a bow and arrow which he had stolen from the house." The prosecutor read to the doctor from the official police report which reflected that the car trunk was not searched at the time.

Dr. Lett testified he did not have any difficulty communicating with the appellant and that appellant understood his questions. Dr. Lett related that appellant understood he was in court with a judge and in trial and had lawyers, etc. Dr. Lett testified, "... I have never indicated that he has a disturbance of intellect." And he related there was no reason why appellant could not tell his lawyers the same story as related to him. He had not talked to or discussed the matter with appellant's lawyers. Dr. Lett concluded that appellant had a grandiose manner of relating events, and that because appellant bragged about certain acts which he (Dr. Lett) did not think were likely to occur in that manner the appellant was delusional.

Dr. Clay Griffith testified he had examined the appellant and that the appellant was competent to stand trial. At the conclusion of the hearing the court stated:

"The Court, having held on its own motion, a hearing pursuant to that mandated by Article 46.02, Section 2, Paragraph B [46.02, § 2(b) ], finds no evidence at this time to support a finding of incompetency of the Defendant to stand trial.

"Now, the Court will permit the Defense to reurge that if at some time additional evidence comes to their attention. The Court has heard the testimony of Dr. Lett and Dr. Griffith and the Defendant who testified earlier at a separate hearing, ³ and the Court is taking that testimony into account as part of the evidence upon which this finding is based. The Court also presumes--I deem this to be a rebuttable presumption and if anybody wants to offer evidence to rebut it, they certainly will have an opportunity.

"The Court presumes if counsel who are not going to be forced to testify by the Court--the Court does presume if the issue of the Defendant's ability to communicate with his counsel and assist them in the preparation of the case was a problem or is a problem, the Court presumes that counsel would have by now made that known to the Court.

"The Court further presumes that should that become a problem, that they will, pursuant to their responsibilities as counsel and officers of the Court, make it known to the Court forthwith and would have done so had that been a problem previously....

[DEFENSE COUNSEL]: Your Honor, to which ruling of the Court ... [appellant] objects and excepts to the Court's ruling and the Court's presumptions."

As is evident, the court conducted a hearing "during the trial" pursuant to Article 46.02, § 2(b), "to determine whether or not there is evidence to support a finding of incompetency to stand trial." At the conclusion of the hearing the court found "no evidence to support a finding of incompetency." See Article 46.02, § 4(a). No separate jury to determine appellant's competency was empaneled.

In Johnson v. State, 564 S.W.2d 707 (Tex.Cr.App.1978) (Opinion on State's Motion for Rehearing), extant at the time of the instant trial, this Court held that under Article 46.02, supra, if evidence of incompetency is brought to its attention during trial the Legislature intended to preserve the bona fide doubt in the mind of the trial judge as the standard of proof to be met before a separate, mid-trial determination of the accused's competency will be required. ⁴ See § 2(b) of Article 46.02. See also Ramsey v. State, 563 S.W.2d 616, 618 (Tex.Cr.App.1978). And in Garcia v. State, 595 S.W.2d 538, 541 (Tex.Cr.App.1980), also extant at the time of the instant trial, it was written:

"Once a court decides to hold a judicial inquiry into competency, however, more formal evidentiary procedures are required. The court can no longer rely on 'evidence ... from any source.' This restriction is implicit in Article 46.02(2)(b) and in the very essence of a hearing. Moreover, it is consonant with the statutory pattern that requires progressively greater formalities as a defendant satisfies the conditions for obtaining a jury determination of the competency issue.

"At the close of a judicial inquiry into competency, the trial court must determine whether evidence exists to support a finding of incompetency to stand trial. See Article 46.02, Sections (2)(b) and (4)(a). When this court reviews a trial court's determination of this issue, the applicable standard is whether the trial court abused its discretion. Auldridge v. State, 533 S.W.2d 821 (Tex.Cr.App.1976); Noble v. State, 505 S.W.2d 543 (Tex.Cr.App.1974)."

Then along came Sisco v. State, 599 S.W.2d 607 (Tex.Cr.App.1980), a panel opinion of this Court with one judge writing the opinion, one judge concurring in the result, and with one judge dissenting. Sisco held that in determining, after hearing in advance of trial on the merits (§ 2(a) of Art. 46.02) whether there was evidence to support the finding of incompetency to stand trial, the trial court was required to assay only evidence tending to show incompetency putting aside all competing indications of competency, to find whether there was some evidence, a quantity more than none or scintilla, that rationally led to the conclusion of incompetency; that where the trial court there based its determination on competing medical report of competency the trial court applied an improper standard. The panel rejected the "bona fide doubt in the mind of the trial judge" standard mentioned in Johnson as it applied to hearings before the court in advance of trial to...