Combs v. State

• Decision Date: 08 December 1982
• Docket Number: No. 286-82,286-82
• Citation: 643 S.W.2d 709
• Parties: David Earl COMBS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 709

643 S.W.2d 709

David Earl COMBS, Appellant, v. The STATE of Texas, Appellee.

No. 286-82.

Court of Criminal Appeals of Texas En Banc.

Dec. 8, 1982.

Gladys R. Goffney, Carol J. Carrier, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Ray Elvin Speece, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

TOM G. DAVIS, Judge.

Trial was before the jury upon appellant's plea of not guilty of murder. After finding appellant guilty, the jury assessed punishment at twenty years. The conviction was reversed by the First Supreme Judicial District Court of Appeals, 631 S.W.2d 534. We granted the State's petition for discretionary review in order to examine the Court of Appeals' holding that appellant's confession was improperly admitted into evidence and that there was insufficient evidence to prove cause of death.

Appellant was convicted of murdering two-year-old Tracy Bennett on December 31, 1978, by holding her head under water.

The Court of Appeals held, as a matter of law, that appellant was incapable of knowingly, intelligently, or voluntarily waiving his Miranda rights.

According to the Court of Appeals, the evidence showed that:

"1) When the rights were read to him he left his head bowed, not looking at the person reading him those warnings;

"2) The appellant only looked up on occasions at a pause or resistance or on a request;

"3) The appellant is a mentally retarded individual who had a functioning age level of 5 to 8 years;

"4) The appellant had an intelligence score from 55 to 70;

"5) The appellant had been placed in at least two mentally retarded homes or schools;

"6) The appellant had difficulty in remembering;

"7) The appellant might be able to understand if large amounts of time were taken with him;

"8) The appellant might be able to understand if simple words were used with him;

"9) The appellant was taking medications prescribed for him of 50 mgs. thorazine;

"10) The appellant was unable to read or write (which fact was determined by an assistant district attorney before the confession was taken);

"11) The appellant was asked at a point in the confession if he wanted to say anything else concerning the death of a child to which he replied 'no'; and then shortly thereafter, a new line of interrogation and replies thereto were recorded; and

"12) When the appellant was asked about his understanding of his rights and about the provisions of the warnings, such as the use of such terms as 'used in evidence in court,' 'appointed,' 'lawyer,' etc., the appellant did not know what they were or what they meant."

The Court of Appeals also stated that, "From the evidence of all parties testifying in Court, it appears that the appellant never had a full realization of 'knowingly' waiving his statutory and constitutional warnings."

The Court of Appeals decision failed to mention the trial court's findings of fact on the issue of the voluntary nature of the confession. In finding that the confession was voluntarily made, the trial court noted, inter alia:

"1. That immediately prior to the defendant's arrest on January 1, 1979, the defendant was in the custody of Wayne N. Bearden, a police officer with the City of Houston, the defendant acted normal, sober, alert and coherent and was not mistreated in any way.

"2. That Houston Police Officer P.J. Schneider took custody of the defendant for arrest purposes on January 1, 1979 at approximately 3:30 in the afternoon. At that time Officer Schneider [gave the defendant the standard Miranda warnings] ... The defendant indicated he understood his rights.

"3. At approximately 4:15 p.m. the defendant was turned over to the custody of Houston Police Officer Charles Lively who read the same rights to the defendant that Officer Schneider did. The defendant indicated he understood his rights.

"4. The defendant was taken to the police station where Judge Lee Duggan met them, and during a private conversation with the defendant carefully explained to him his rights....

"Each one of these warnings was explained to the defendant in language he could understand. The defendant affirmatively acknowledged understanding each right after Judge Duggan explained it to him.

"5. At approximately 6:30 p.m. Jerry Guerinot, an Assistant District Attorney working intake, arrived in the Juvenile Division of the police department and began talking to the defendant who he determined could not read or write.

"6. Because it was believed the defendant could not read or write, a tape recorder was acquired.

"7. At approximately 7:43 p.m. the defendant voluntarily discussed with Jerry Guerinot his involvement in the killing.

"8. This discussion was tape recorded and reduced to writing at about 8:15 p.m.

"9. The transcription was then read to the defendant by Jerry Guerinot page by page, line by line and word by word.

"10. The defendant acknowledged that all matters read to him were true and correct, and he printed his name to the written transcription in the presence of Jerry Guerinot and Detectives C.W. Lively and D.W. Smith.

"11. Jerry Guerinot saw the defendant again on January 3, 1979 at approximately 5:30 p.m. in the Juvenile Division of the police [department].

"12. Jerry Guerinot read the defendant his legal warnings, as appear on the page preceeding the defendant's transcribed statement marked Exhibit Number 2.

"13. Jerry Guerinot then re-read the defendant's transcribed statement exactly as he had done on January 1, 1979.

"14. The defendant once again acknowledged the truthfulness of all matters read to him and printed his name in the presence of Jerry Guerinot and Officers Donald W. Smith and R.D. Gonzales.

"14. During all conversations with officers and Jerry Guerinot the defendant was sober, able to understand and answer all questions.

"15. The defendant was never promised, threatened or coerced in any way to make him confess.

"16. The defendant never gave any indication to any officer as being mentally retarded or taking any kind of medication.

"17. The defendant never asked to have a lawyer present to consult with him.

"18. That even though the defendant has a low I.Q. and is not as mature and intelligent as the officers or Jerry Guerinot, there was no evidence of any over reaching because everyone who dealt with him were very patient and cautious to make sure he understood everything that was happening.

"The Court bases its finding in this case after carefully examining the demeanor and the manner in which each witness testified. The Court paid particular attention to the defendant's testimony and noticed that he understood the questions asked and was able to communicate proper responses."

In Grayson v. State, 438 S.W.2d 553 (Tex.Cr.App.1969), a psychiatrist and a psychologist testified that the appellant had an intelligence quotient of 51 and classified him as a low-grade moron.

This Court stated that, "Whether appellant had the mental competency or intelligence required to waive his right to remain silent and to have counsel present was for the court and the jury. The issue was fairly presented and resolved against appellant." 438 S.W.2d at 555. Accord, White v. State, 591 S.W.2d 851 (Tex.Cr.App.1979); Bell v. State, 582 S.W.2d 800 (Tex.Cr.App.1979); Nash v. State, 477 S.W.2d 557 (Tex.Cr.App.1972).

The Court of Appeals also failed to mention that a competency hearing was held, after which the jury found appellant competent to stand trial.

In Grayson v. State, supra, at 555, we stated, "It is difficult to see how one accused of crime may lack sufficient intelligence to waive his right against self-incrimination and to counsel, yet be competent to stand trial; to understand the nature of the charge against him and to assist his counsel in preparing a rational defense."

Finally, the Court of Appeals decision ignored all of the State's evidence tending to show that appellant made a knowing, intelligent, and voluntary waiver of his constitutional and statutory rights.

Dr. Jerome Brown, a clinical psychologist, testified for the State at appellant's competency hearing. All of the testimony from the competency hearing was admitted into evidence at the hearing on the voluntariness of the confession by stipulation of the parties. Dr. Brown testified that he has conducted between twelve hundred and fifteen hundred competency and sanity evaluations since 1969 on people charged with crimes.

Dr. Brown characterized appellant as a person of limited intellectual ability, but he did not consider appellant to be incompetent, mentally defective, or mentally retarded.

Dr. Brown tested appellant and determined that his intelligence quotient was 75. This test score indicated that appellant was in the borderline area between mild retardation and normal but limited intelligence. Dr. Brown stated that the intelligence quotient range for people with mild mental retardation is roughly 65 to 75. Appellant's reading ability was at the second grade level.

Dr. Brown thought appellant had the capability for higher achievement given the right conditions. Appellant was able to describe his behavior and events which took place on or about the time of the alleged offense and gave his own version of the events which supported his innocence. "He certainly knew that he was accused of doing something very bad. He knew what he was accused of and was able to account for himself."

Appellant, according to Dr. Brown, "is able to function independently and self-sufficiently but in a fairly limited and simple way." The appellant knew who and where he was and the doctor had no trouble getting information from him. "All I'm saying is that I felt that I didn't have to make a significant effort to communicate with him, and as long as I was willing to be patient and fairly direct and simple in my questions, then I had no trouble working with...