Dinn v. State, 54939
| Decision Date | 20 September 1978 |
| Docket Number | No. 2,No. 54939,54939,2 |
| Citation | 570 S.W.2d 910 |
| Parties | Joe DINN, Jr. v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Donald B. Dailey, Jr., Corpus Christi, for appellant.
William B. Mobley, Jr., Dist. Atty., J. Grant Jones, Asst. Dist. Atty., Corpus Christi, for the State.
Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
This is an appeal from a conviction for aggravated assault, wherein the jury, having found that the appellant had been previously convicted of a felony as alleged in the indictment, assessed punishment at sixteen (16) years' confinement in the Department of Corrections.
In three grounds of error appellant complains that the trial court erred in not having him examined by a psychiatrist on the issue of his competency to stand trial, by not holding an adequate hearing to determine such issue, and in ruling the evidence was insufficient to support such issue.
We are not here confronted with a pre-trial motion to appoint a psychiatrist or the refusal to impanel a jury for a pre-trial determination of competency to stand trial. The matters here complained of arose during the trial on the merits.
In order to better understand appellant's contentions, a brief summary of the facts is necessary. On July 21, 1975 the appellant about 5:30 p.m. went to the home of Jesus Davila, apparently his uncle. Davila was there with his wife, Josefa, his two children and his wife's sister, Connie Rios. The appellant changed shirts, and when he started to leave he wanted Connie to go with him, but she refused. He then forced her toward the door and then stabbed her in the hip. She ran into the kitchen and out the back door. Josefa Davila fled the house. It was later shown she went to her mother's house. The complaining witness, Jesus Davila, then asked the appellant to put the knife down, and the appellant stabbed Davila in the arms and in the abdomen and ran out the front door. Bleeding, Davila took his two children to his mother-in-law's house. The appellant appeared there, but the mother-in-law, Rufina Garcia, persuaded the appellant to give her the knife. He then fell on the floor saying, He stayed about three minutes and left. The appellant was later arrested and taken to jail. Davila was taken to the Memorial Medical Center, where he stayed three days.
The defensive issue at the trial on the merits was insanity at the time of the commission. There was testimony bearing on that issue, as well as testimony that the appellant had been drinking beer for some time before the alleged offense and was drunk when later arrested.
Jesus Davila, the complaining witness, describing the appellant at the time of the offense, testified that the appellant "came at me like he was berserk . . . ;" his "eyes looked like . . . he was not in his right mind." He described appellant's conduct was "weird or hard to believe" and that the appellant acted like an "insane man."
Davila's wife, Josefa, testified appellant had acted like a "crazy person" and "needed treatment." She testified appellant called her from the jail and told her that her husband had better not testify.
Rufina Garcia, Josefa's mother, testified that when the appellant came to her house after the stabbings he acted like a "crazy man . . . out of his mind." She based this on the fact he threw himself to the floor asking for someone to kill him. She related that he was a very kind, very good person to her, but when she saw him in jail he "looks very sad, like he's sick or something."
Luis Garcia, son of Rufina Garcia, testified he saw the appellant at his mother's house after the stabbings and that he (appellant) did not act like a man with good sense. He related, "I think he lost his mind." He added, "When Joe stabbed by brother-in-law, he lost his mind, you know."
Connie Rios, the appellant's girlfriend, when asked if the appellant acted crazy, replied, "I don't know." She related she, the appellant and her brother, Luis Garcia, had all been drinking beer at the Davila house, that the appellant left and upon his return the stabbings took place.
After the State rested its case, the defense called Esperanza Davila, grandmother of the appellant, who thought he was insane, not right in his mind and was getting worse. She wanted him examined by a doctor. She related that there had been no prior difficulties between the appellant and Jesus Davila and explained that appellant was drunk on the date of the alleged offense. The record also reflects on direct examination:
Sylvia Aroya, mother of the appellant, testified the appellant was twenty-one years old and had not lived with her for a year and a half. She stated she had reason to believe he was not right in his mind and was getting worse. Although it was not established when the letters were written, she related she had received letters from the appellant threatening suicide, and she believed anyone who would do that had severe mental problems. She thought her son needed psychiatric treatment. At the close of the evidence at the guilt stage of the trial, appellant conferred with his counsel and agreed that the jury need not be sequestered.
The issue of insanity at the time of the commission of the alleged offense was submitted to and rejected by the jury at the guilt stage of the trial.
At the penalty stage of the trial, appellant conferred with counsel about his plea to the enhanced portion of the indictment and about whether to testify. He did testify and his testimony was lucid.
At three different times during the presentation of the State's case in chief the court, in the absence of the jury, sua sponte, made inquiry into appellant's competency to stand trial. The first inquiry came after the testimony of Jesus Davila. The second inquiry came after the testimony of Josefa Davila, Rufina Garcia and Luis Garcia. The third and last inquiry came after the testimony of Connie Rios and the arresting officer, W. W. Whatley, Jr.
These inquiries revealed that appellant's court-appointed attorney had recently represented the appellant in a burglary case in Kleberg County and that the issue of competency to stand trial had not been raised in that case, that no pre-trial motions had been filed in the instant case, that counsel hadn't thought about having appellant examined by a physician or a psychiatrist "until today." He related he had talked and communicated with the appellant during the earlier trial and had visited with him in the county jail prior to the instant trial. He related he had received numerous letters from the appellant, but the suggestions contained therein were nothing other than "jailhouse law" and of no practical value. Counsel expressed the opinion that appellant's judgment was poor. He based this on the fact that appellant had rejected a five year term as a part of a plea bargain agreement. When asked if appellant's ideas made sense, counsel merely referred to the facts of the instant case, his personal knowledge of the complaining witness, and the lack of provocation concerning the instant offense.
Luis Garcia testified in the inquiry that he saw the appellant in the jail and he was "not normal." Later, however, he stated the appellant was in full command of himself. When asked if the appellant was crazy, he answered, Connie Rios testified she also saw the appellant in jail, that he answered questions, told her things and was able to communicate with her, that he made sense.
Arresting Officer Whatley testified during the inquiry that at the time of arrest the appellant came at him, that he pulled his gun and told appellant to freeze, which he did. Appellant was then handcuffed and arrested for aggravated assault, drunk and disorderly conduct. He related that appellant was upset, cursed, and made threats, and on the way to jail kept yelling obscenities to people on the street. He expressed the opinion that appellant was intoxicated at the time. He thought appellant was mean as opposed to crazy.
Tom Grace, captain in charge of the county jail, testified he had known the appellant for eight years, that appellant had been in jail under his supervision for several months prior to trial, that he observed him and communicated with him daily. He expressed the opinion that appellant could think straight, knew what he was doing, and was normal. Grace did not think appellant was crazy or out of contact. In his opinion appellant could communicate with his lawyer and answer questions. He stated that appellant was "very mean, very cold." He related that only recently an inmate was stabbed in the same cell where appellant was and that on another occasion a fire had been started in appellant's cell. He didn't know whether appellant had anything to do with the fire, but believed appellant had done the stabbing.
At the conclusion of the third inquiry and before any testimony was offered by the defense, the court dictated the following into the record:
"The Court has inquired out of the presence of the jury into the competence of the Defendant to stand trial, and based upon what the Court has heard from several witnesses, based further upon the Court's personal observations of the Defendant in Court, conferring with his counsel, his general demeanor, the Court is of the opinion and does so find that the Defendant is mentally competent and capable of standing trial."
For the first time after such ruling in mid-trial appellant's counsel asked for the appointment of a psychiatrist. The motion was denied.
Article 46.02, § 1, V.A.C.C.P., in effect at the time of appellant's trial on June 7, 1976, read:
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