Clark v. State

• Decision Date: 13 June 2001
• Citation: 47 S.W.3d 211
• Parties: (Tex.App.-Beaumont 2001) NATHAN CLARK, Appellant v. THE STATE OF TEXAS, Appellee NO. 09-00-066 CR
• Court: Texas Court of Appeals

Page 211

47 S.W.3d 211 (Tex.App.-Beaumont 2001)

NATHAN CLARK, Appellant v. THE STATE OF TEXAS, Appellee

NO. 09-00-066 CR

Court of Appeals of Texas, Beaumont

Submitted March 16, 2001

Decided June 13, 2001

On Appeal from the 258th District Court Polk County, Texas Trial Court Cause No. 14589

[Copyrighted Material Omitted]

Before Walker, C.J., Burgess and Gaultney, JJ.

OPINION

PER CURIAM.

A jury found appellant Nathan Clark guilty of assault on a public servant¹ and assessed a punishment of thirteen (13) years confinement in the Texas Department of Criminal Justice - Institutional Division ("TDCJ").

Background Facts

Amber Eaves, a correctional officer with TDCJ, investigated a rule infraction by an inmate during her shift on May 12, 1997. She copied down his name -- Nathan Clark -- and his ID number from his identification card in order to write up a violation on him. Shortly thereafter, Officer Eaves saw the inmate again. When he asked to speak with her, she refused. A few minutes later, Eaves entered the officer's restroom located below the control picket.² As she left the restroom, the inmate asked to speak with her a second time; when she refused, he grabbed her by the arm, pulled her back into the restroom, and closed the door. The inmate then put her up against the wall and began hitting her with his fist. During the assault, she tried to protect herself by covering her face and shutting her eyes. Eaves testified that the person she saw committing the rule infraction in his cell was the same person who assaulted her and the person whose ID card she had taken for purposes of writing up the infraction.

Officer Kenneth Watson was stationed in the control picket that day. From that vantage point, he observed Officer Eaves going toward the officers' restroom. After hearing screaming coming from the restroom, Watson phoned the "3 building" desk and requested immediate assistance, since he was not permitted to leave the control picket to offer assistance himself.

Sergeant Folsom was the first to respond to Officer Watson's call for assistance. Once inside the officer's restroom, Folsom observed an inmate fling Eaves into the glass windows. Sergeant Folsom grabbed and struggled with the inmate, who was then restrained, handcuffed, placed on a gurney, and taken to "medical."

Issue One--Identity

Clark contends in issue one that the evidence was insufficient as a matter of law to establish that he was the person who assaulted Officer Eaves.³ When a defendant contests the identity element of the offense, we are mindful of the following priniciples of law:

Identity may be proved by direct or circumstantial evidence. In fact, identity may be proven by inferences. When there is no direct evidence of the perpetrator's identity elicited from trial witnesses, no formalized procedure is required for the State to prove the identity of the accused. Proof by circumstantial evidence is not subject to a more rigorous standard than is proof by direct evidence. For the purposes of proving guilt beyond a reasonable doubt, direct and circumstantial evidence are equally probative.

Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.--Austin 2000, pet. ref'd) (citations omitted). Here, the evidence that Clark was the one who assaulted Eaves is circumstantial.

Clark points out that Officer Eaves was unable to identify him as the man who assaulted her. Eaves testified that during the attack she closed her eyes and covered her face as she attempted to shield herself from the blows. As a result, she could not identify Clark as the man who assaulted her. However, she did indicate she saw an inmate standing at the restroom door when she opened it to go in; this was the same inmate whom she had earlier observed committing an infraction and whose name she had copied off his ID card as Nathan Clark.

During his testimony, the State showed Watson State's Exhibit 10, a photo of an inmate lying stomach-down on the floor, with his face turned to the left side. When asked if the person in the photo was in the courtroom, Officer Watson expressly identified the defendant as the man in the picture. However, Watson could not identify the person in the photo as the man who assaulted Eaves in the restroom, since he could not see inside the restroom from his vantage point in the control picket.

In describing the aftermath of the assault, Folsom testified he stood and watched the inmate lying on the floor; Folsom stated he saw the inmate's face, as depicted in State's Exhibit 10, at the time the photo was taken. Folsom confirmed the inmate in the picture (Exhibit 10) was the one he had seen assaulting Eaves.

Even though no eyewitness to the crime could identify Clark as the perpetrator, if other evidence shows that he was the perpetrator, the failure of the victim to make a positive in-court identification does not make the verdict improper. See Conyers v. State, 864 S.W.2d 739, 740 (Tex. App.--Houston [14th Dist.] 1993, pet ref'd). It is the other evidence, when coupled with Eaves' testimony, that establishes the identity element beyond a reasonable doubt. In short, Officer Folsom testified the man who assaulted Eaves was the man in the photograph, and Officer Watson identified the person in the photograph as the defendant in the courtroom and stated that the person in the photo was the same person taken by prison personnel from the scene of the assault on a gurney. Thus, the jury could have inferred the element of identity, i.e., that Clark was the one who committed the assault. Furthermore, the members of the jury were able to view the picture and the defendant themselves and determine whether the two were one and the same. Weighing the evidence and credibility of the witnesses, the jury made that determination and found Clark guilty of the offense. We overrule issue one.

Issue Two--Jury Trial On Competency

In issue two, Clark contends the jury finding that he was competent to stand trial was so against the great weight and preponderance of the evidence as to be manifestly unjust. We disagree.

An accused is presumed competent to stand trial unless he can prove his incompetence by a preponderance of the evidence. See Tex. Code Crim. Proc. Ann. art. 46.02(1A)(b) (Vernon Supp. 2001). The test for legal competence is whether the defendant has (1) a sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and (2) has a rational as well as factual understanding of the proceedings against him. See id. at art. 46.02(1A)(a); see also Loftin v. State, 660 S.W.2d 543, 545-46 (Tex. Crim. App. 1983). When a separate jury is empaneled to decide the accused's competency, the jury makes its determination based upon a preponderance of the evidence standard. See Rice v. State, 991 S.W.2d 953, 956 (Tex. App.-Fort Worth 1999, pet. ref'd). The standard for reviewing the jury's finding of competence is whether, considering all the evidence relevant to the issue, the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. See Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim. App. 1990).

At the competency hearing on July 1, 1999, the jury had before it the following evidence relating to Clark's competency:

(A) Dr. Massey's detailed testimony as to why he concluded Clark was not competent to stand trial, along with his acknowledgment that there was a real possibility that Clark was malingering to escape the consequences of his action.

(B) Dr. Tchokoev's testimony that Clark was competent to stand trial and his opinion that Clark, in effect, was like those who "assimilat[e] a mental condition for secondary benefits."

(C) Clark's testimony;

(D) Medical records showing the belief by some of the health professionals who treated Clark that he was manipulating his behavior to get what he wanted -- including records quoting Clark as admitting to engaging in bizarre behavior in order to obtain a transfer from the unit he was in.

The jury judges the credibility of witnesses and the weight to be given their testimony, and it is within the exclusive province of the jury to reconcile conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). In closing argument to the jury, Clark's attorney bluntly framed the issue for them to decide: "Is he faking?" After hearing Clark's testimony and that of the two experts, the jury reasonably could have determined Clark was competent to stand trial. We conclude the jury's finding of competency is not so against the great weight and preponderance of the evidence as to be manifestly unjust. Clark's second issue is overruled.

Issue Three--A Second Competency Hearing?

In issue three Clark contends the trial judge abused his discretion in failing to empanel another jury to determine his competency after the pre-trial hearing on November 29, 1999. He claims there was sufficient evidence before the court at that hearing⁴ to warrant such an action.

Chapter 46 of the Code of Criminal Procedure governs competency to stand trial issues; Article 46.02(2), set out below, explains how the issue of competency is raised.

Sec. 2 (a) The issue of the defendant's incompetency to stand trial shall be determined in advance of the trial on the merits if the court determines there is evidence to support a finding of incompetency to stand trial on its own motion or on written motion by the defendant or his counsel filed prior to the date set for trial on the merits asserting that the defendant is incompetent to stand trial.

(b) If during the trial evidence of the defendant's incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.

Tex. Code Crim. Proc. Ann. art. 46.02(2) (Vernon 1979). Since appellant did not file another written pre-trial motion...