Brandon v. State

• Citation: 599 S.W.2d 567
• Decision Date: 25 April 1979
• Docket Number: No. 59348,59348
• Parties: Thelette BRANDON, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 567

599 S.W.2d 567

Thelette BRANDON, Appellant, v. The STATE of Texas, Appellee.

No. 59348.

Court of Criminal Appeals of Texas, En Banc.

April 25, 1979.

Rehearing En Banc Denied June 13, 1979.

Opinion on Appeal after Abatement May 21, 1980.

Second Motion for Rehearing Denied June 11, 1980.

Jerry P. Campbell, court appointed, R. Scott Moran, court appointed, Waco, for appellant.

Felipe Reyna, Dist. Atty. and Lynn Malone, Asst. Dist. Atty., Waco, Robert Huttash, State's Atty., Austin, for the State.

OPINION

DALLY, Judge.

This is an appeal from a conviction for capital murder. The punishment is death.

The appellant makes no contention that the evidence is insufficient to support the jury's verdict on the trial on the merits. The appellant while in a bus station in Waco stabbed and killed a man. As the appellant was fleeing from the scene of the stabbing Sgt. Roger Barrett, a Waco police officer, attempted to stop the appellant. In the struggle which resulted the appellant stabbed Barrett and shot him with the officer's own revolver. Barrett died as a result of the injuries inflicted by the appellant. The appellant was convicted for killing Barrett, who it was alleged appellant knew was a peace officer acting in the lawful discharge of his duties. The appellant's sole defense on the trial on the merits was insanity.

Before the trial on the merits appellant's counsel filed a motion alleging that the appellant was not competent to stand trial. The motion was supported by the report of a psychiatrist which stated that appellant was not presently competent to stand trial. The motion was granted; a jury was selected to hear the competency issue only, and both the appellant and the State offered extensive testimony and evidence concerning the appellant's competency. The jury in resolving the issue found the appellant competent to stand trial.

The record on appeal includes all of the competency proceedings. This Court has recently held that it will review the proceedings on competency when such matter is raised in an appeal from the judgment after the trial on the merits. Jackson v. State, 548 S.W.2d 685 (Tex.Cr.App. 1977). Appellant asserts that in the competency proceedings he was denied his constitutional right to due process of law, and therefore there was not a lawful determination that he was competent to stand trial before he was forced to trial on the merits. Specifically the appellant complains of improper jury argument by the prosecutor, and also asserts that he used all of his peremptory strikes and was then forced to accept an objectionable juror after it had been necessary to use a peremptory strike on a prejudiced juror who should have been excused for cause. The appellant also complains that the trial court improperly restricted voir dire examination of the jury panel and misstated the law in instructing the jury.

We first discuss appellant's contention that the prosecutor made misstatements of law and other prejudicial comments during jury argument at the competency trial.

In his closing argument at appellant's competency trial the prosecutor made the following statement to the jury:

"Now, Mr. Moran said, well, if you find him competent, he is going to a maximum security hospital, a hospital for the criminally insane, and their own witness, Dr. Holbrook, the State's witness, testified to that. Well, that's quite true, Ladies and Gentlemen. If you find this man incompetent if you find this man incompetent, he will go to Rusk State Hospital. And do you know how long they can keep him? They can keep him for up to one year, and they have to send him back, at that time. They have to, regardless of what his condition is. And he has to be civilly committed, that means they put him in a civil hospital, the hospital down at Austin, Texas, that you read about people walking away from all of the time. That's right. That's right. That's how long he will be in maximum security."

Appellant objected to the comment; his objection was sustained, and the jury was instructed to disregard the comment.

The following discussion then took place:

"MR. MALONE: Well, Ladies and Gentlemen, you use your common sense. Whatever he has got today, he had the date of this offense, and if he's incompetent, yeah, someday he will be set free without being tried for this offense, I can promise you that.

"MR. MORAN: We'll object to that.

"MR. CAMPBELL: Your Honor, that is a misstatement of the law.

"MR. MALONE: Well, Your Honor, that's what Mr. Moran said, he said it would never happen. He said the man would never go free without being tried.

"THE COURT: I'm going to overrule that objection.

"MR. MALONE: You ought to keep that in mind. That's all I ask you to do, is use you common sense."

Later in his closing argument the prosecutor made reference to the previous testimony of William Upshaw, a McLennan County Jail inmate, concerning a conversation which Upshaw had with appellant while in jail:

"And William asked Thelette, said, 'What are you in here for?' And he said, well, I killed a 'swine'. That's not the language he used, but that's what it meant, I killed a 'swine'. And, of course, a 'swine' is a 'pig'. And he said, well, who did you kill? And he said 'a Waco pig'."

Still later the prosecutor stated:

"MR. MATKIN: But you can see from the records of the jail that reflect that there were other times when (appellant) wanted to see a lawyer and wanted to talk to his lawyers. (Defense Counsel) Campbell said they went up there on other occasions, but they really didn't try to go into it. And I submit to you, the reason for that is because they knew they had found their defense in this case, they knew that competency was their best hope of beating this thing.

"MR. CAMPBELL: We will object to that, Your Honor. Competency can in no way be used to beat a rap, so to speak.

"MR. MALONE: If it please the Court

"THE COURT: Overrule the objection.

"MR. MATKIN: And that's the way they were going. Sure, they had Thelette sign some authorizations to get his records. Sure, they had him do that, but he is incompetent. They never talked to him about the case, they never asked him about the case very much after that, and I believe that's why they didn't go into it that much."

Appellant urges that the comment that he would be set free if found incompetent, combined with the other comments, "infected the whole decision-making process" of the hearing and "irreparably tainted" the determination of his competency to stand trial.

The State's sole response to appellant's contention is that appellant's ground of error is multifarious and not subject to review because it "presents a jumble of items of both argument and testimony, to some of which objection was made, and in other cases, not." Appellant refers to more than one comment by the prosecutor, but his ground of error is intelligibly written, and his arguments can be clearly understood. Art. 40.09, Sec. 9, V.A.C.C.P.

We agree with appellant that these statements made before the competency jury, taken as a whole, were highly prejudicial and misleading.

The prosecutor's comment that appellant would go free if found incompetent was a clear misstatement of the law. Nowhere does Art. 46.02, V.A.C.C.P., which deals with incompetency to stand trial, provide that upon a finding of incompetency the defendant must be released, as the prosecutor implied in his comment. A defendant can only be discharged by order of the trial court, and the court always has the alternative to order commitment proceedings. Nor is it necessarily true that appellant would never be tried for the offense. There is not statute of limitations on murder, and the prosecuting attorney must be notified before a defendant's release from civil commitment, if the prosecuting attorney has properly notified the head of the committing facility. Thus the State has the opportunity to prosecute the defendant again. This comment was harmful to appellant because it implied to the jurors that if they found appellant incompetent he would never go to trial and would inevitably be released. The prosecuting attorney made further improper remarks by personally "promising" the jurors such a result, and by remarking that if found incompetent appellant would eventually be sent to the Austin State Hospital, from which patients routinely "walk away."

The argument here is similar to that made in Bruce v. Estelle, 483 F.2d 1031 (5th Cir. 1973). There, in "rhetoric reminiscent of a television drama," the prosecutor stated:

"I suggest right now he's (Bruce) thinking, he knows that they have already said he was sane in '64 already said sane now, you find him insane at the time of his trial, he goes free. That's what he knows, because you can't incarcerate in a mental hospital a sane man. I think he knows that he can't be tried again. I think he knows the memories have faded and the evidence has dissipated in the intervening four years.

"That's what I think he knows. It's a very clever attempt to put something over on you as jurors to where he gets out of prison after having done life, (sic) been given a life sentence in Dallas County for the crime of murder with malice.

"This is your county. You can do what you want to. You're the arbiters of what goes on in this county. If you want him walking the streets of your county, you go ahead and let him out; find him insane at the time of his trial and you will have effectively let him out of prison. That's what you are facing in your decision in this trial." (Emphasis added)

The Court in Bruce strongly condemned the prosecutor's argument, declaring that:

"Such emotional, erroneous and prejudicial comments have no place in a dispassionate resolution of the question whether Bruce was competent in 1965 to stand trial.

"These comments most probably infected the whole decision-making process of the jury. State counsel knew that Bruce could be retried and his assertion to the jury that he...