Eastham v. State

• Decision Date: 04 June 1980
• Docket Number: No. 59093,59093
• Citation: 599 S.W.2d 624
• Parties: William Henry EASTHAM, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 624

599 S.W.2d 624

William Henry EASTHAM, Appellant, v. The STATE of Texas, Appellee.

No. 59093.

Court of Criminal Appeals of Texas, En Banc.

June 4, 1980.

Harry Tom Petersen, El Paso, for appellant.

Steve W. Simmons, Dist. Atty. and Paul J. Kubinski, Asst. Dist. Atty., El Paso, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON REHEARING ON COURT'S OWN MOTION

ONION, Presiding Judge.

Our prior opinion on original submission is withdrawn and the following is substituted in lieu thereof.

This appeal is taken from a conviction for murder, where the punishment was assessed by the jury at ninety-nine (99) years' imprisonment.

On appeal appellant raises five grounds of error. He challenges the lack of a jury at the restoration of competency hearing, contends the evidence at such hearing was insufficient to support a finding of competency to stand trial. Further, appellant contends the trial court should have, sua sponte, halted the trial on the merits when evidence of his incompetency to stand trial was received and conducted separate proceedings to determine that issue. He also urges the court erred in sustaining the State's objections to his counsel's questioning of a doctor, a defense witness, as to whether he was suffering from a mental disease or defect or was capable of conforming his conduct to the requirements of the law.

Appellant was indicted on October 2, 1975 for the murder of his mother on or about September 19, 1975. On April 1, 1976, a jury in a competency to stand trial hearing found the appellant incompetent to stand trial and also found there was no substantial probability that he would become competent within the foreseeable future. On March 24, 1977, a mental health report on appellant, including an evaluation and disposition, was filed in the trial court. It was dated March 21, 1977, and was signed by Robert B. Sheldon, M. D., Superintendent of the Rusk State Hospital, where the appellant had been committed. The report stated Dr. Sheldon's opinion that the appellant was not now mentally ill and not in need of hospitalization for his own protection and welfare of others and now mentally competent to stand trial. Attached to the report was an evaluation signed by Dr. Sheldon and James A. Hunter, M. D., Clinical Director, Maximum Security Unit, Rusk State Hospital.

On October 10, 1977, a restoration of competency hearing was conducted before the court. At the outset the court determined there were no objections to the court "trying the matter." The court was then informed that the appellant personally and his counsel and the State had executed a jury waiver concerning the hearing. Such a waiver is in the record. The court orally inquired of the appellant personally if it was his desire to waive a jury trial on the question of competency and was assured that it was. The prosecutor then offered State's Exhibit No. 1 into evidence stating, "which exhibit is a certified letter addressed to the District Attorney from Dr. Robert B. Sheldon and Dr. James A. Hunter, both physicians at the Rusk State Hospital, . . . in which the Defendant is, in the opinion of the examining physicians, '. . . now mentally competent to stand trial.' " Appellant's counsel expressly stated there was no objection to offer and the exhibit was admitted. The State rested and offered no further evidence. The appellant offered no evidence. Thereafter the court found the appellant competent to stand trial and entered a restoration judgment.

In connection with the first two grounds of error complaining about the lack of a jury at the restoration hearing and the insufficiency of the evidence, we observe that both the appellant and the State cite to us and quote from Article 46.02, § 5, V.A.C.C.P., as to the procedure to be utilized in restoration proceedings. It appears that since the appellant was found incompetent to stand trial by a jury who also found there was no substantial probability that he would become competent in the foreseeable future he was civilly committed with criminal charges pending under § 6 of Article 46.02, supra, in effect on April 1, 1976 (Acts 1975, 64th Leg., p. 1095, ch. 415, § 1, eff. June 19, 1975). This section also provided for a restoration procedure which was in effect at the time of the Mental Health Report in March, 1977. At the time of the restoration hearing on October 10, 1977, Article 46.02, supra, had been once again amended (Acts 1977, 65th Leg., p. 1458, ch. 596, § 1, eff. Sept. 1, 1977). § 8(d) and (e) of the amended statute reads as follows:

"(d) The head of a mental health or mental retardation facility to which a person has been committed or transferred as a result of the proceedings initiated pursuant to Section 6 of this article and who has received written notice from a court or prosecuting attorney that criminal charges are pending against the person shall notify the court in writing at least 14 days prior to the discharge of the person unless the notice provided for in (c) above has been given. A written report as to the competency of the person to stand trial shall accompany the notice of discharge.

"(e) On written notice by the head of a mental health or mental retardation facility that in his opinion a person who has been civilly committed to that facility and against whom criminal charges are pending is competent to stand trial, or on good cause shown by the defendant, his counsel, or the prosecuting attorney, the court in which the criminal charges are pending may hold a hearing to determine the competency of the defendant to stand trial. The hearing shall be before a jury unless waived by agreement of the parties. The order setting the hearing shall order the defendant placed in the custody of the sheriff for transportation to the court. The court may appoint disinterested experts to examine the defendant in accordance with the provisions of Section 3 of this article. If the defendant is found to be competent to stand trial, the proceedings on the criminal charges may be continued. If the defendant is found incompetent to stand trial and is under an order of commitment to a mental health or mental retardation facility, the court shall order him placed in the custody of the sheriff for transportation to that facility."

Appellant complains of the lack of a jury at the restoration of competency hearing. There was no jury because a jury had been waived by agreement of the parties in accordance with the statute above quoted. Appellant does not point to any constitutional or statutory provision that mandates a jury trial in every restoration of competency hearing. He does not claim the jury waiver was not voluntarily and knowingly made, and he produced no evidence or data that all persons previously found to be incompetent to stand trial, etc., and represented by counsel may not execute a valid jury waiver. Appellant's first contention is overruled.

Appellant further contends the evidence was insufficient at such hearing to support a finding of competency. He contends State's Exhibit No. 1 was hearsay and that hearsay is without probative value, even if admitted without objection, citing Mendoza v. State, 522 S.W.2d 898 (Tex.Cr.App.1975), and Reynolds v. State, 489 S.W.2d 866 (Tex.Cr.App.1972). The State's Exhibit No. 1 appears to have been the letter-report-evaluation of Dr. Sheldon mentioned earlier as filed by the clerk some months before the hearing. The exhibit itself is not in the record. Whether it was certified and therefore admissible under Article 3731a, V.A.C.S., we cannot tell. It may well have been. In light of the record, appellant's second contention is overruled.

Next, appellant contends the court erred in not moving on its own to halt the trial on the merits and to institute a separate competency hearing upon receipt of evidence...