Collier v. State

• Decision Date: 18 December 1997
• Docket Number: No. 72,406,72,406
• Citation: 959 S.W.2d 621
• Parties: James Paul COLLIER, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 621

959 S.W.2d 621

James Paul COLLIER, Appellant, v. The STATE of Texas.

No. 72,406.

Court of Criminal Appeals of Texas En Banc.

Dec. 18, 1997.

Rehearing Denied Feb. 11, 1998.

Tom Schrandt, Wichita Falls, for appellant.

John W. Brasher, Assistant District Attorney, Barry L. Macha, Criminal District Attorney, Wichita Falls, Matthew Paul, State's Atty., Austin, for State.

MANSFIELD, Judge.

On April 17, 1996, a Wichita County jury found appellant, James Paul Collier, guilty of the March 14, 1995, capital murder of Gwendolyn Joy Reed. ¹ See Tex. Penal Code § 19.03(a)(7)(A). At the punishment stage of trial, the jury answered the special issues in such a manner as to require the trial court to sentence appellant to death. See Article 37.071, § 2(b), (e), & (g). ² Direct appeal to this Court was then required by law. Id. at § 2(h). Appellant brings four points of error in his brief to this Court. We will affirm the judgment of the trial court.

In point of error number one, appellant contends that the trial court violated his Fourteenth Amendment right to due process of law when it denied his pretrial motion to question the venire regarding the minimum time (40 years) a convicted capital murderer sentenced to life imprisonment must serve before becoming eligible for parole. See Article 42.18, § 8(b)(2). Appellant, who was 48 years old at the time of trial, argues that the venire should have been informed that, if convicted and sentenced to life imprisonment, he "would probably not live long enough to ever be eligible for parole." Appellant claims this information was relevant to the jury's consideration of the special punishment issue concerning his future dangerousness. See Article 37.071, § 2(b)(1). ³ Appellant cites Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), in support of his argument.

A trial court commits error if it prohibits defense counsel from asking proper voir dire questions. Caldwell v. State, 818 S.W.2d 790, 793 (Tex.Crim.App.1991), cert. denied, 503 U.S. 990, 112 S.Ct. 1684, 118 L.Ed.2d 399 (1992). A question is "proper" if it seeks to discover a venireperson's views on an issue applicable to the case. Id. at 794. An appellate court must review the trial court's ruling under an abuse of discretion standard. Id. at 793.

We have held repeatedly that parole is not an issue applicable to a capital murder case and, therefore, that the trial court does not err in disallowing voir dire questions concerning parole. See, e.g., Eldridge v. State, 940 S.W.2d 646, 651 (Tex.Crim.App.1996); Morris v. State, 940 S.W.2d 610, 613 (Tex.Crim.App.1996). "As to future dangerousness, we have held that in deciding whether a defendant poses a continuing threat to society, a jury considers not only free society, but also prison society. Because the length of [a defendant's] incarceration does not reduce or increase his future dangerousness, it is not relevant to that issue." Morris v. State, 940 S.W.2d at 613.

Appellant's reliance upon Simmons is misplaced. In that case, a majority of the United States Supreme Court (plurality and concurring opinions) concluded that, in capital murder cases in which the State puts the defendant's future dangerousness in free society in issue and the only available alternative sentence to death is life imprisonment without the possibility of parole, the defendant must be allowed to inform the capital sentencing jury that he is parole ineligible. The Court's conclusion was grounded on the defendant's due process right to meet the State's case against him. However, it is now settled that "the underlying rationale ... in Simmons ... is inapplicable to Texas jurisprudence." Smith v. State, 898 S.W.2d 838, 850 n. 17 (Tex.Crim.App.) (plurality op.), cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995). "Because Texas does not allow parole information to enter the jury's deliberations, a defendant is not sentenced based upon information which he has had no opportunity to rebut or explain." Id. at 853. See also Broxton v. State, 909 S.W.2d 912, 919 (Tex.Crim.App.1995) (adopting reasoning in Smith plurality opinion).

In summary, we discern no abuse of discretion on the part of the trial court in its refusal to allow voir dire questions concerning parole. We overrule point of error number one.

In point of error number two, appellant complains that "[t]he trial court committed reversible error in not stopping the trial for a competency hearing to determine if [he] was competent to stand trial." Under this point, appellant argues that his pretrial conduct raised the question of his competency and that the trial court, on its own motion, should have submitted that question to a jury pursuant to Article 46.02, § 4(a). ⁴ As evidence of his incompetency at the time of trial, appellant points to the following pretrial occurrences: (1) a letter he sent to the trial court several months before trial, in which he asked that his court-appointed counsel be replaced and in which he stated, "I'm not in too good of mental order"; (2) a written, pretrial Ake ⁵ motion in which defense counsel requested a court-appointed psychologist to assist the defense, on the basis that there was "evidence in the defendant's background which suggest[ed] that he may suffer from a mental or emotional condition ... linked to his alleged conduct in this case"; (3) appellant's assertion, during voir dire, of his Sixth Amendment right to conduct his own defense; ⁶ (4) his subsequent claim that his standby counsel was "conspiring" against him; and, finally, (5) his complaints, all apparently minor, regarding conditions and personnel in the county jail.

The record reflects that, after (1), (2), and (3) occurred but before (4) and (5) occurred, the trial court, on its own motion and out of an abundance of caution, held a pretrial, non-jury, evidentiary hearing to consider appellant's competency to stand trial and conduct his own defense. See Article 46.02, § 2(a), footnote four, supra. At that hearing, appellant's treating psychiatrist, Dr. Hector Decena, testified that appellant had "major depression disorder" but that he was rational, of average intelligence, and competent, within the meaning of Article 46.02, § 1, to stand trial. See Article 46.02, § 1(a), footnote four, supra. Appellant's two trial counsel also stated that they believed him to be legally competent. No other evidence was presented. At the conclusion of the hearing, the trial court found appellant competent.

Article 46.02, § 2, requires the trial court to conduct a non-jury hearing--a section 2 hearing--on whether to hold a jury trial on the defendant's competency "if evidence of the defendant's incompetency is brought to the attention of the court from any source." See G. Dix & R. Dawson, Texas Criminal Practice and Procedure § 26.54 (1995). ⁷ A section 2 hearing is required only if the evidence brought to the judge's attention is such as to raise a bona fide doubt in the judge's mind as to the defendant's competency to stand trial. Johnson v. State, 564 S.W.2d 707, 710 (Tex.Crim.App.1977) (op. on reh'g), overruled on other grounds, Williams v. State, 663 S.W.2d 832 (Tex.Crim.App.1984). In general, a bona fide doubt is raised, so as to require a section 2 hearing, only if the evidence indicates recent severe mental illness, at least moderate mental retardation, or truly bizarre acts by the defendant. Mata v. State, 632 S.W.2d 355, 359 (Tex.Crim.App.1982). The evidence to which appellant points was insufficient to raise a bona fide doubt; therefore, the trial court was not required to hold a section 2 hearing, much less submit the question of appellant's competency to a jury.

Under this same point of error, appellant also argues that the trial court erred in failing to appoint a "disinterested expert," under Article 46.02, § 3(a), to examine him with regard to his competency to stand trial. See Article 46.02, § 3(a), footnote four, supra. Again, however, we discern no error. Article 46.02, § 3(a), allows a trial judge to appoint a disinterested expert if there is evidence which raises the issue of appellant's incompetency. Leyva v. State, 552 S.W.2d 158, 160-161 (Tex.Crim.App.1977). Appellant has not directed our attention to any such evidence in the record. We overrule point of error number two.

In point of error number three, appellant, citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), contends that "[t]he trial court committed reversible error [in] allowing [him] to represent himself." Appellant's argument under this point of error is vague, at best, but he appears to be arguing that there was insufficient evidence before the trial court showing that his waiver of his Sixth Amendment right to counsel at trial was knowing, intelligent, and voluntary.

The Sixth and Fourteenth Amendments guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished for any felony. Faretta v. California, 422 U.S. at 807-808, 95 S.Ct. at 2527. Those amendments also guarantee that any such defendant may dispense with counsel and make his own defense. Id. at 818-820, 95 S.Ct. at 2533. Such a decision, to be constitutionally effective, must be made (1) competently, (2) knowingly and intelligently, and (3) voluntarily. Godinez v. Moran, 509 U.S. 389, 400-401, 113 S.Ct. 2680, 2687, 125 L.Ed.2d 321 (1993); Faretta v. California, 422 U.S. at 834-836, 95 S.Ct. at 2541; see also Tex.Code Crim. Proc. art 1.051. The decision to waive counsel and proceed pro se is made "knowingly and intelligently" if it is made with a full understanding of the right to counsel, which is being abandoned, as well as the dangers and disadvantages of self-representation. ⁸ Faretta v. California, 422 U.S. at 834-836, 95 S.Ct. at 2541. The decision is made "voluntarily" if it is uncoerced. Godinez v....