DeBolt v. State

• Decision Date: 16 July 1980
• Docket Number: No. 1,No. 58962,58962,1
• Citation: DeBolt v. State, 604 S.W.2d 164 (Tex. Crim. App. 1980)
• Parties: Carl DeBOLT, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 164

604 S.W.2d 164

Carl DeBOLT, Appellant, v.The STATE of Texas, Appellee.

No. 58962.

Court of Criminal Appeals of Texas, Panel No. 1.

July 16, 1980.

Rehearing Denied Sept. 17, 1980.

Christian Jenkins, court appointed, Corpus Christi, for appellant.

William B. Mobley, Jr., Dist. Atty. and J. Grant Jones, Asst. Dist. Atty., Corpus Christi, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and ROBERTS and DALLY, JJ.

OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of murder.The punishment is imprisonment for seventy-five years.

The appellant raises nineteen grounds of error complaining of the following: the trial court erred in not appointing a psychiatrist of appellant's choosing; the trial court erred in instructing the prosecutor concerning the predicate necessary before admitting a report; an autopsy report, a confession, and a knife were improperly admitted in evidence; the trial court erred in refusing to give the jury instructions requested by the appellant; and the prosecutor made improper jury argument during both the guilt-innocence stage and the punishment stage of the trial.

The appellant contends that the trial court erred in failing to appoint a psychiatrist of his choosing.Appellant prior to trial filed a motion seeking the appointment of a psychiatrist.Art. 46.02, V.A.C.C.P.The motion included a special request for the appointment of a certain named psychologist not a psychiatrist.The trial court did appoint a psychiatrist but not the psychologist sought by the appellant.In two subsequent motions the appellant sought the appointment of the psychologist he had previously named.The motions were overruled.

The appellant contends that the failure to appoint the psychologist of his choice deprived him of a fair trial, effective representation of counsel, and violated due process of law and equal protection.The appellant asserts that as an indigent defendanthe could not afford to pay for a psychiatric examination and that Art. 46.02 should be interpreted as providing indigent defendants with expert psychiatric testimony.

The appellant misinterprets Art. 46.02 which in part provides:

"Sec. 3(a).At any time the issue of the defendant's incompetency to stand trial is raised, the court may, on its own motion or motion by defendant, his counsel, or the prosecuting attorney, appoint disinterested experts experienced and qualified in mental health or mental retardation to examine the defendant with regard to his competency to stand trial and to testify at any trial or hearing on this issue."

The purpose of this statute is to provide for the appointment of a disinterested expert who through his testimony will help the trial court and jury determine a defendant's competency to stand trial or determine his sanity at the time of the offense.SeeArt. 46.03, V.A.C.C.P.This appointed expert is not appointed to aid one side or the other during the prosecution of a case.SeeVon Byrd v. State, 569 S.W.2d 883(Tex.Cr.App.1979), cert. denied441 U.S. 967, 99 S.Ct. 2418, 60 L.Ed.2d 1073(1979).Furthermore, we have been unable to find anything in the record showing harm to the appellant.The appellant did not file a motion for a competency hearing.The appellant testified that he did not commit the murder and the issue of insanity was not raised.No harm has been show.Cherry v. State, 488 S.W.2d 744(Tex.Cr.App.1972), cert. denied, 411 U.S. 909, 93 S.Ct. 1538, 36 L.Ed.2d 199(1972).

The appointed psychiatrist, the evidence shows, made a thorough examination of the appellant and rendered a full written report.The appointed psychiatrist conferred with appellant's counsel prior to trial and administered tests to appellant as suggested by appellant's counsel.The appellant still insists that the trial court erred in refusing to appoint the psychologist selected by him because: (1) the judge failed to advise the appointed psychiatrist of facts and circumstances of the offense as required by Art. 46.02, Sec. 3(c), V.A.C.C.P.;(2) the appointed psychiatrist failed to file his report within thirty days after his appointment; (3) the appointed psychiatrist was furnished prejudicial information by police officers regarding facts of the case; (4) the appointed psychiatrist told the appellant that any statement made by him would be used in the guilt-innocence stage of the trial.We have carefully considered the record in light of the appellant's contentions and overrule all of these grounds relating to the court's refusal to appoint the psychologist named by appellant's counsel.

The appellant argues that the trial court erred when the judge instructed the prosecutor as to the proof required to lay a predicate for the introduction of an autopsy report.The appellant contends that such instructions destroy the judge's impartiality and convey to the jury the impression that the judge and the prosecutor are a team.However, the instructions were given outside of the presence of the jury so that no impressions of a team or of partiality could have been conveyed to the jury.The giving of the instruction, if error, was harmless error.

The appellant further complains that the autopsy report should not have been admitted in evidence because an inadequate predicate had been laid.The medical examiner for Nueces County, Dr. Rupp, testified that he had the care, custody, and control of all records of the medical examiner's office.He stated that this report was prepared in the regular course of business, by a person with personal knowledge of the act, made at or near the time of the act.Dr. Rupp testified that Dr. Hobbit, a deputy medical examiner, performed the autopsy.Dr. Rupp stated that he had authorized and approved the autopsy by Dr. Hobbit.Appellant argued that there was no evidence that the preparer of the report was a medical doctor and therefore the predicate was inadequate.We disagree and conclude that the autopsy report was properly admitted as a business record.SeeWhitfields v. State, 492 S.W.2d 502(Tex.Cr.App.1973);Art. 3737e(3), V.A.C.S.Moreover, the autopsy report was a public record and was properly admitted in evidence.Art. 49.25, Sec. 11, V.A.C.C.P.andArt. 3731(a), V.A.C.S.

In his next ground of error the appellant argues that it was error to admit the knife used to kill the deceased in evidence without first having it cleaned.The knife when it was removed from the deceased's body had a piece of material attached to it.That piece of material was still attached to the knife.The appellant contends that the knife stunk and should have been cleaned before being introduced in evidence.Appellant argues that the stench prejudiced his case.However, while the appellant's attorney complained of the smell in his objection at trial there was no evidence in the record concerning the smell of the knife.There is nothing presented in the record for this Court to review.Furthermore, this Court has repeatedly held that the weapons with which an offense has been committed are admissible even though they are bloodstained.Knox v. State, 487 S.W.2d 322(Tex.Cr.App.1972);Pounds v. State, 230 S.W. 683(Tex.Cr.App.1921).The admission in evidence of this knife was not error.

The appellant contends that the trial court erred in overruling his motion to suppress a confession given by him.He argues that the confession was the result of his arrest and that arrest was unlawful because there was no probable cause.However, even if an arrest and detention are improper that fact alone would not render appellant's confession inadmissible absent a causal connection between the arrest and the confession.Hamel v. State, 582 S.W.2d 424(Tex.Cr.App.1979).In addition to the alleged unlawful arrest the appellant argues that the confession was the result of promises made by police officers that they would release from jail his wife and help her in obtaining assistance if he would confess.

In the case at barthe appellant was arrested in Port Arthur along with his wife.The appellant was taken before a magistrate and advised of his constitutional rights.The following afternoon two officers took custody of the appellant to drive him back to Corpus Christi.The officers testified that when they picked the appellant up at Port Arthur he was advised of his constitutional rights as interpreted in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 594(1966).During the trip back to Corpus Christi the appellant orally confessed to the crime.The officers and the appellant stopped and ate dinner.Afterwards the officers told appellantthey needed a written statement and the appellant repeated the story.Upon arrival at Corpus Christi the officers had a secretary type up appellant's confession.On each page of the confession the warnings in Art. 38.22, V.A.C.C.P. were written.After the warnings were two questions: "Do you understand the above rights?" and "Do you want to give them up, and make a statement?"The appellant wrote yes after each question and then the appellant signed his name.This was done on each of the three pages of the confession.Where the requirements of Art. 38.22, V.A.C.C.P. are complied with and the appellant acts of his own free will and his statements did not result from the arrest itself, his confession is not vitiated by an unlawful arrest.Pearson v. State, 414 S.W.2d 675(Tex.Cr.App.1967);Hamel v. State, supra.

The appellant testified that each time he gave a confession he was under the influence of marihuana.The officers testified that the appellant looked alert and did not appear to be under the influence of any drug.The appellant testified that the officers promised that his wife would be released from jail and would see to it that help was given to her.The officers denied that any promises were made and that in fact appellant's wife had already been released from jail.In this situation where there was...