Bush v. State, 33890

• Citation: 372 S.W.2d 683
• Decision Date: 27 November 1963
• Docket Number: No. 33890,33890
• Parties: James E. BUSH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 683

372 S.W.2d 683

James E. BUSH, Appellant, v. The STATE of Texas, Appellee.

No. 33890.

Court of Criminal Appeals of Texas.

Nov. 27, 1963.

Billy J. Moore, Ennis, Charles Alan Wright, Austin, for appellant.

Bruce Allen, County Atty., Waxahachie, and Leon B. Douglas, State's Atty., Austin, for the State.

McDONALD, Judge.

This cause is pending before us on appeal. Our prior opinion affirming the conviction is reported in 353 S.W.2d 855. The Supreme Court of the United States vacated our judgment on writ of certiorari, 371 U.S. 859, 83 S.Ct. 123, 9 L.Ed.2d 98. The Supreme Court's opinion states that 'two days before argument here the State commendably filed a 'Supplemental Brief for the Respondent' calling to the Court's attention the following 'Diagnostic Summary,' relating to the petitioner's mental condition, prepared by the Psychiatric Resident of the Houston State Psychiatric Institute at Houston'. 372 U.S. 586, 83 S.Ct. 922, 9 L.Ed.2d 958. The psychiatric diagnostic summary referred to by the Court was prepared by Adolf Hug, M.D., and it appears in full in the Court's opinion. The Supreme Court stated: 'At the time its decision was rendered, the Court of Criminal Appeals had available to it neither the above psychiatrist's report nor the view of the Assistant Attorney General regarding disposition of the case'. (The opinion of the Supreme Court recites that during oral argument, when the Assistant Attorney General of Texas was asked the views of his office in the event the case should be vacated and remanded by this Court, the Assistant Attorney General of the State of Texas stated that his personal position would be that the man should be examined in this hospital and that evidence should be presented to the trial court. He further responded, to an inquiry made by the Chief Justice: 'You would grant him a new trial?', 'Yes'.) The Supreme Court stated in its opinion: 'Appropriate federal-state relations and proper regard for state processes require that Texas' highest criminal court be afforded the opportunity to pass upon the case with these later developments before it. The judgment of the Texas Court of Criminal Appeals is therefore vacated, and the case is remanded for consideration in light of subsequent developments' and 'in order that such proceedings may be had in the said cause, in conformity with the judgment of this Court, as accord with right and justice, and the Constitution and laws of the United States, the said writ of certiorari notwithstanding.'

Pursuant to the March 25, 1963, opinion of the Supreme Court of the United States, this Court entered an Order on April 24, 1963, outlining the statutory manner whereby appellant's sanity may be judicially determined while an appeal from his conviction is pending in this Court and further stating that if the issue of sanity or insanity is determined by a jury the result of the trial should be certified to this Court. This Court's Order further stated that final disposition of this appeal will await the filing of further motions, briefs and certification as to 'subsequent developments' referred to in the Supreme Court's opinion.

The District Court of Ellis County impaneled a jury pursuant to the above mentioned order of this Court. A trial was held on July 22, 1963, on the issue of the appellant's sanity or insanity. Although the provisions of Sec. 3, Art. 932b, Vernon's Ann.C.C.P., only provides a method for judicially determining an appellant's sanity while an appeal from his conviction is pending, or if the question of sanity of the defendant is raised after his conviction and prior to the pronouncement of sentence, and does not provide for a judicial determination of sanity or insanity at the time of the commission of the offense charged, we observe from the transcript that the learned trial judge not only submitted the issue of present insanity (July 22, 1963) to the jury, but he also submitted an issue on whether or not the appellant was sane or insane on October 21, 1960, the date the offense was alleged to have been committed, and on April 25, 1961, the time of the main trial. The record reflects that four months elapsed from the time that the Supreme Court of the United States handed down its opinion until the preliminary trial on the sanity issue was held by the trial court. It is apparent from the record of this last proceeding that the appellant was transferred to the Rusk State Hospital, where he was admitted February 21, 1963, and was there confined and under psychiatric treatment for a period of 89 days until he was furloughed back to Ellis County around May 21, 1963. At the hearing held in the trial court on July 22, 1963, two psychiatrists, a general practitioner and several lay witnesses testified for the State. All testimony, without exception, reflecting the sanity of appellant on the three occasions herein mentioned. The appellant's counsel neither cross-examined any of the State's witnesses, nor did the appellant adduce any testimony. One of the psychiatrists, Dr. Charles W. Folsom, who testified, had observed appellant for the entire period of his 89 day stay in the Rusk State Hospital. The other psychiatric...