Cooney v. State

• Decision Date: 09 January 1991
• Docket Number: No. 08-89-00369-CR,08-89-00369-CR
• Citation: 803 S.W.2d 422
• Parties: John Louis COONEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 422

803 S.W.2d 422

John Louis COONEY, Appellant, v. The STATE of Texas, Appellee.

No. 08-89-00369-CR.

Court of Appeals of Texas,

El Paso.

Jan. 9, 1991.

Rehearing Overruled Feb. 6, 1991.

Susan Larsen, El Paso, for appellant.

Steve W. Simmons, Dist. Atty. of El Paso County, El Paso, for appellee.

Before OSBORN, C.J., and FULLER and WOODARD, JJ.

OPINION

OSBORN, Chief Justice.

This is an appeal from a conviction for sexual assault on a seven-year-old child. The jury assessed punishment, enhanced by one prior felony conviction, at imprisonment for sixty years and a fine of $10,000.00. We affirm.

Point of Error No. Three asserts that the lower court erred in finding the seven-year-old child competent to testify under Tex.R.Crim.Evid. 601(a)(2). The issue was not preserved for appellate review. Appellant requested that the court examine the child for competency, but expressed no complaint or objection to the trial court's finding. Franco v. State, 492 S.W.2d 534 (Tex.Crim.App.1973); Lujan v. State, 626 S.W.2d 854 (Tex.App.--San Antonio 1981, PDRR). Point of Error No. Three is overruled.

Point of Error No. Four challenges the sufficiency of the evidence, disregarding the child's testimony. The point is contingent upon a sustaining of the competency complaint, which we have overruled. Even if the competency point had been sustained, this sufficiency point, as argued, could not be entertained on appeal under Bass v. State, 732 S.W.2d 632 (Tex.Crim.App.1987). Point of Error No. Four is overruled.

Points of Error Nos. One and Two challenge the outcome of a jury trial of Appellant's competency, conducted in advance of the trial on the merits of the indictment. Appellant asserts a denial of due process in forcing him to trial while incompetent. He contends that the trial judge erred in refusing to instruct a verdict of incompetency in that there was no evidence to support the jury's negative verdict. This Court considered sufficiency of the evidence with regard to competency in Schuessler v. State, 647 S.W.2d 742 (Tex.App.--El Paso 1983), rev'd, 719 S.W.2d 320 (Tex.Crim.App.1986) and in Meraz v. State, 714 S.W.2d 108 (Tex.App.--El Paso 1986), aff'd, 785 S.W.2d 146 (Tex.Crim.App.1990).

We turn first to the appellate standard of review applicable in this case. That standard is a function of four elements: (1) the placement of the burden of proof in the trial court; (2) the degree of proof required; (3) the jury's decision for or against the party with the burden; and (4) the type of sufficiency challenge raised on appeal. In Schuessler and Meraz, the first three elements were the same as in the case before us now. In the trial courts those defendants bore the burden of proof by a preponderance of the evidence on either competency or insanity as a defense, and the juries rejected the defense positions. The present case, however, differs with regard to the point of error raised on appeal. In Schuessler and Meraz, the defendants were presenting what is normally referred to on the civil side of the docket as factual insufficiency of the evidence complaints, conceding the presentation of some evidence on both sides of the issue, but contending that the jury verdict was so contrary to the great weight and preponderance of defense evidence as to be manifestly wrong and unjust. Appellant in this case is presenting a legal insufficiency challenge contending that the only evidence presented favored incompetency, that there was no evidence to the contrary and that the fact of incompetency was proven as a matter of law, not subject to jury assessment.

The existence of two degrees of appellate evidentiary complaint, with their differing concepts of error and their differing appellate procedures, is an elementary, fundamental proposition in civil cases, yet historically alien to the criminal docket. There is, however, no legal or logical basis for excluding such a dual approach in criminal cases. We referred to the distinction in our opinion in Schuessler, 647 S.W.2d at 748-749. In rejecting our analysis in that case, and applying a modified standard of review under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), albeit indirectly by reference to Van Guilder v. State, 709 S.W.2d 178 (Tex.Crim.App.1985), cert. denied, 476 U.S. 1169, 106 S.Ct. 2891, 90 L.Ed.2d 978 (1986), the Court of Criminal Appeals attempted to maintain a "single standard" of appellate review for sufficiency of the evidence challenges, modifying its application only slightly when dealing with an affirmative defense or other issue upon which the defense bears the burden of proof.

In any event, our suggestion that two degrees of appellate evidentiary complaint are applicable in criminal cases is not inconsistent with any of the state or federal authority relied upon in Schuessler, Van Guilder and Meraz. The only policy favoring a preclusion of such analysis arises from an unspoken preference on the part of primarily criminal bench and bar for the relatively cleaner lines and discernible horizons of traditional criminal procedure. That is an attitude which we admittedly share to some extent, but which as suggested above, should not be adhered to with a rigidity which is injurious to legal and logical integrity.

Furthermore, acceptance of the two degrees of appellate evidentiary challenge cannot be faulted as inherently favoring either affirmance or reversal, State or defendant. As reflected in the cited cases, such a procedure is outcome-neutral. Additionally, in avoiding a rigid historical devotion to compartmentalized criminal analysis, we are not suggesting a desperate wholesale, strained resort to civil concepts. Our analogy to the differing civil appellate complaints as to the sufficiency of the evidence is simply that--an analogy. It stems from a logical consideration of the precise complaint and argument raised on appeal, i.e., recognition of the significance of differing placements of the trial court burden of proof, differing degrees of proof required, differing contentions as to the existence or non-existence of conflicting evidence, differing focus as to the alleged trial error (legal error on the part of the court or fact-finding error on the part of the jury) and differing consequences upon reversal. As reflected in the Court of Criminal Appeals opinion in Meraz, acceptance of two degrees of evidentiary challenge in criminal cases does not inherently abridge the required deference which appellate courts must accord to the weight and credibility assessments of the trial court fact finder.

We also do not adopt a rigid civil standard for phrasing points of error. See O'Neil v. Mack Trucks, Inc., 542 S.W.2d 112 (Tex.1976). Here, for instance, Appellant employed a legal insufficiency phrasing ("no evidence") which in civil cases would only be appropriate where the verdict favored the appellee on an issue upon which the appellee bore the burden of proof. The burden having been upon the...