DeRusse v. State

• Decision Date: 11 April 1979
• Docket Number: No. 56070,No. 3,56070,3
• Citation: 579 S.W.2d 224
• Parties: Joe Henry DeRUSSE, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 224

579 S.W.2d 224

Joe Henry DeRUSSE, Appellant, v. The STATE of Texas, Appellee.

No. 56070.

Court of Criminal Appeals of Texas, Panel No. 3.

April 11, 1979.

Robert D. Thorpe and Michael G. Morris, Corpus Christi, for appellant.

William B. Mobley, Jr., Dist. Atty. and Eric G. Brown, Asst. Dist. Atty., Corpus Christi, Robert Huttash, State's Atty., Austin, for the State.

Before DALLY, W. C. DAVIS and CLINTON, JJ.

OPINION

DALLY, Judge.

This is an appeal from a conviction for murder. The punishment is imprisonment for twenty-six years.

Appellant contends that: (1) a psychiatrist was erroneously permitted to testify to statements made by appellant during a competency examination; (2) the prosecutor improperly referred to the order of the trial court finding that appellant's confession was voluntary; (3) testimony concerning an unrelated crime was erroneously introduced; (4) the prosecutor offered in evidence photographs which had previously been ruled inadmissible; (5) evidence as to appellant's lack of a prior criminal record was erroneously excluded; (6) the trial court erroneously refused appellant's requested charges on assault and on the presumption of innocence; (7) the trial court erroneously charged the jury on the offense of injury to a child; (8) the prosecutor engaged in improper jury argument; (9) the district attorney should have been required to honor a pretrial plea bargain agreement; and (10) the State should not have been allowed to have two attorneys present its case.

The evidence establishes that appellant and his wife fatally beat their three-year-old son with their hands, a board, a belt, and an electric cord. ¹ The child was pronounced dead on arrival at the Robstown Riverside Hospital on October 4, 1975. Two of the nurses on duty in the emergency room at the time testified that the child appeared to have been run over by a car.

The Nueces County Medical Examiner testified that:

" . . . the child was severely beaten. I estimated that about seventy-five percent of the body surface was covered with contusions and bruises and that the bruising was from the top of the head to the tops of the feet. There was literally no area spared of the bruising . . ."

Asked the cause of death, the Medical Examiner testified:

". . . the underlying cause of death was extensive contusions and ecchymoses of the body.

"Q. In layman's terms, what does that mean?

"A. He was beaten to death."

Appellant's defense was that he was insane at the time of the offense. Dr. Henry Hammer, a clinical psychologist, testified that he had examined appellant in October, 1975. He described his conclusions, based upon this examination, as follows:

"I saw Mr. deRusse as suffering from a paranoid state which is transitory, psychotic episode of indeterminate length. This means that for a specific part of his life, Mr. deRusse was out of contact with reality. The greater portion of his life he was in contact with reality and continues to be in contact with reality. That is, he would be perceived by most reasonable people to be okay, to not be crazy. However, when you get into that segment of his life that encapsulates a delusional belief system, his perception of the situation and yours might be very radically different. His area of interest, which was delusional, happened to be in the sphere of religion. He believed and I haven't spoken with him since October, '75, so I can't say what his belief system might still be, but at that time he believed very deeply in possession by demons. This gets into a religious area that is tricky to deal with because a significant portion of the population, maybe small in terms of percentage but large in terms of numbers, also believed in possession by spirits. Where it gets to be important to distinguish is his particular elaboration of those beliefs, how they were in his mind. He had a very concrete belief that his son was possessed by a spirit, by a demon, that his son was acting not on his own but at the behest of a spirit, a demon.

"Now, insofar as you and I would not agree that that is in fact what has been happening, he was out of contact with reality. Now that is very superficially what went on. What we are dealing with here is a whole complex personality on which superimposed is this basic disorder. This disorder which is of indeterminant length but of serious proportion . . ."

Dr. Hammer testified that appellant did not intend to harm his son when he beat him:

. . . He was busy attacking the behavior of a demon, in his own mind, he was. As extra baggage to that, as something that happened inadvertently, he undesirably, perhaps, undesirably is a better term, he was also causing physical harm to his son. He saw that as very undesirable. He did not want to cause harm to the son. He did want to correct this demonic behavior he perceived."

Dr. Hammer testified that, in his opinion, appellant's delusional belief that his son was possessed by a demon was a mental disease or defect and appellant, as a result, did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law. V.T.C.A. Penal Code, Sec. 8.01.

In rebuttal, the State called Dr. Joel Kutnick, a psychiatrist who had been appointed by the trial court to examine appellant as to his competence to stand trial and his sanity at the time of the offense. Art. 46.02, Sec. 3, and Art. 46.03, Sec. 3, V.A.C.C.P. Dr. Kutnick testified that appellant had not beaten his son to get rid of a demon, but as means of discipline:

". . . (A)s I see the case, the religious issue, in one way, is kind of a red herring because Mr. deRusse himself doesn't feel or doesn't in any way say that the reason he was disciplining his child was because he was trying to get rid of the demon. He was doing it as a way of trying to teach his boy the correct way of behaving and in his own mind felt that he was doing the right kind of thing in terms of bringing up his son. The religious issue is kind of, wasn't the kind of thing that motivated him to act in terms of delivering punishment to his son at all."

Moreover, Dr. Kutnick did not believe that appellant's religious beliefs constituted a mental disease or defect. He expressed his disagreement with Dr Hammer as follows:

"Dr. Hammer feels . . . that because his religious beliefs are such that a majority of the population don't have the strong conviction or as a bizarre kinds of things, like demon possession and seeing smoke arise from the boy's body, at one time, that this represents a psychosis, a mental illness, a paranoid state. I don't see this as a mental illness. I think one has to be very careful when one gets into the area of religion and calling people mentally ill. Many, many people have all kinds of religious beliefs . . . They are not sick in the psychiatric sense, they are only caught up in their own cultural beliefs. I feel that the way Mr. de Russe presents with his rational thinking and being able to explain, if you accept his basic premises that there is a good and evil in the world and that the evil is because of Satan and his henchmen demons and good comes out of the world because of God . . ., if you accept all of those basic tenets, that what he says and how he views things makes perfect sense and is not illogical at all, if you accept those tenets. That to me is not mental illness . . ."

As a basis for his testimony, Dr. Kutnick described the history of the case as related to him by appellant during the course of his examination. Most of this testimony was a repetition of testimony by other witnesses, including witnesses called by appellant, but this testimony also included certain facts which were not otherwise in evidence. Specifically, Dr. Kutnick testified that appellant had told him that he had burned the soles of his son's feet with matches; that appellant and his wife had poured jalapeno pepper juice in the boy's eyes; and that on the night he died, the child had been left tied to a door so that he could not raid the refrigerator, a habit which his parents were trying to break.

Prior to Dr. Kutnick's testimony, a discussion as to the admissibility of any statements made by appellant during the doctor's examination was held outside the presence of the jury. At that time, appellant contended, as he does now on appeal, that such statements were inadmissible under the terms of Art. 46.02, Sec. 3(f), as it read at the time of the trial. ² The trial court overruled appellant's objection, and held that Dr. Kutnick could testify as to the contents of his report.

Art. 46.02, Sec. 3(g), supra, reads:

"No statement made by the defendant during the examination or hearing on his competency to stand trial may be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding."

There is no comparable provision in Art. 46.03, supra, relating to examinations on the issue of sanity at the time of the offense.

Art. 46.03, Sec. 3(g), V.A.C.C.P., provides that experts appointed to examine a defendant with regard to the insanity defense may also examine the defendant with regard to his competence to stand trial. Appellant's pretrial motion for a psychiatric examination, which is in the record, expressly requests such a dual purpose examination, and the order appointing Dr. Kutnick directs that he conduct such an examination.

We are presented with the question of whether Art. 46.02, Sec. 3(g), supra, applies to statements made by a defendant during an examination pursuant to Art. 46.03, Sec. 3(g), supra. We hold that it does not.

Any psychiatric examination with regard to the defendant's sanity at the time of the offense, and any testimony by the psychiatrist based on that examination, must necessarily deal with the defendant's conduct, and his perception thereof, at the time of the offense. The statements of the defendant to the psychiatrist concerning that conduct are, therefore, highly probative on the issue of...