Ex parte Hagans

• Decision Date: 09 November 1977
• Docket Number: No. 55504,55504
• Citation: 558 S.W.2d 457
• Parties: Ex parte Edward Otho HAGANS.
• Court: Texas Court of Criminal Appeals

Page 457

558 S.W.2d 457

Ex parte Edward Otho HAGANS.

No. 55504.

Court of Criminal Appeals of Texas.

Nov. 9, 1977.

State's Motion for Rehearing Denied Dec. 14, 1977.

Edith L. James, Dallas, for appellant.

Max P. Flusche, Jr., Asst. Atty. Gen., Austin, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is a post-conviction habeas corpus proceeding under Article 11.07, Vernon's Ann.C.C.P., in which appellant seeks to set aside his 1961 murder conviction in which he was originally assessed the death penalty. ¹ His conviction was affirmed in Hagans v. State, 372 S.W.2d 946 (Tex.Cr.App.1963).

It is petitioner's contention that he was denied due process of law in his 1961 trial by the failure to conduct a separate hearing on his competency to stand trial in accordance with the mandate of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), which has been held to be retroactive. See Ex parte Halford, 536 S.W.2d 230 (Tex.Cr.App.1976), and cases there cited.

Following the conclusion of the post-conviction habeas corpus hearing, the court filed findings of fact and conclusions of law denying relief. This court is, of course, not bound by such findings of fact and conclusions of law. Ex parte Bazemore, 430 S.W.2d 205 (Tex.Cr.App.1968); Ex parte Williams, 486 S.W.2d 566 (Tex.Cr.App.1972); Ex parte Swinney, 499 S.W.2d 101 (Tex.Cr.App.1973); Ex parte Bagley, 509 S.W.2d 332 (Tex.Cr.App.1974); Ex parte Lemay, 525 S.W.2d 1 (Tex.Cr.App.1975); Ex parte Davila, 530 S.W.2d 543 (Tex.Cr.App.1975); Ex parte Garcia, 548 S.W.2d 405 (Tex.Cr.App.1977).

At the habeas corpus hearing, the attorney for petitioner at his 1961 trial testified that he was not a doctor and could not truthfully say whether petitioner was competent to stand trial or waive any of his rights in 1961. He related that petitioner had not given him the assistance he needed concerning petitioner's mental condition. Counsel stated, "(h)e either did not know it or would not give it or was not competent to give it . . . I was unable to get anything to help me concerning his mental condition." He did talk to petitioner at length about the facts of the case, but "I was not satisfied at all with the information that he had given me." He acknowledged that no request was made for a separate sanity hearing as authorized by Article 932b, Vernon's Ann.C.C.P., then in effect. He explained the doctors who testified at the trial had agreed to do so without compensation and he didn't think they would testify twice, and further, he didn't want to alert the prosecution as to the defense to be offered. Counsel stated he did not discuss strategy about not filing a pre-trial request for a separate sanity hearing with appellant, but did make his mother and sister aware of such strategy.

In addition to the attorney's testimony, the record of the 1961 trial was introduced into evidence at the habeas corpus proceedings. That record reflects the brutal murder of Mrs. Zoura Hagans, the widow of petitioner's deceased uncle, and her sister, in Nacogdoches, an eventual flight to California, where the petitioner surrendered to the F.B.I. Upon return to Texas, he made a written confession. The record reflects there was testimony from three psychiatrists and two general practitioners.

The record of the 1961 trial reflects that before the alleged murder Dr. Robert Denman, a general practitioner, examined the petitioner in June, 1960 at the Little York Hospital in Houston, where it was reported he had a convulsion and complained of stomach pain. It appeared petitioner had been drinking heavily. An X-ray showed a thickening in the frontal area of appellant's skull, most likely due to injury and resulting in intracranial pressure. An electroencephalogram test showed his brain waves were abnormal and indicated brain impairment. Dr. Denman advised petitioner's mother that there was permanent brain damage which was not repairable, coupled with a psychiatric problem which would worsen without treatment. He referred the appellant to Dr. Eugene Tipps, a psychiatrist, since he felt the appellant could become violent or harmful to the family or some other person. Petitioner's wife, Hazel, who was a nurse's aide at the hospital, had been seen by Dr. Denman with bruises and had told the doctor that the petitioner had beaten her. When asked if the appellant knew right from wrong, the witness stated, "I would say that he is inconsistent and that sometimes he does and sometimes he doesn't." The doctor further related he had seen the appellant on occasions in the hospital when he (the witness) did not think the appellant knew the difference between right and wrong.

Dr. Tipps testified that he examined and treated the petitioner on July 1 and July 18, 1960. He learned that petitioner had convulsions as an infant, apparently due to a birth injury, that he quit school at age nine and had psychiatric evaluation several years later by a Dr. Harris, who told his parents he had brain damage. An electroencephalogram at that time showed abnormal brain wave tracings. He was given anti-convulsant medication. At age nineteen in 1952, he was in an automobile wreck and was unconscious for eighteen days and later developed blackouts. In 1957, he was in a motorcycle wreck and was unconscious for seven days. His blackouts then became more frequent, occurring two or three times a day, but he had no true epileptic attacks according to Tipps until a few days before his admittance to the hospital in June, 1960. Tipps related the results of the encephalogram test ordered by Dr. Denman and knew there was brain damage and intracranial pressure, and stated abnormal brain waves are not present unless there is brain impairment or epilepsy. In addition, he related that there was an emotional impairment, a marked loss of emotional control.

Tipps related petitioner's condition would not improve with time, and there was no cure for it. He related that in trying to communicate with the petitioner he could not "get through" to him and "it was like a pane of glass between us." He prescribed librium for the epilepsy, which had a tendency to level out the brain waves. Dr. Tipps also advised petitioner's mother that the petitioner was dangerous to himself and others and should be in custodial care. He further testified that petitioner did not have the same moral concept as a normal person, and did not have the same interpretation of right and wrong as a normal person.

Dr. Frank Zimmerman, resident psychiatrist of the Titus-Harris Clinic, affiliated with John Sealy Hospital, testified the records at the clinic indicated that brain wave tests conducted there on petitioner in 1948 and 1949 indicated abnormality. The records also showed a standardized IQ test indicated petitioner's IQ to be 83, in the range of dull normal. His mental age was shown to be eleven years and eight months with twelve years and six months as the maximum mental age he would reach in his lifetime. The records also revealed petitioner was suffering from epilepsy at the time of the tests.

Dr. Tedrow J. Ford, Jr., a first cousin of petitioner, testified that petitioner had an injury at birth and his facial features had been paralyzed since then. He related that in infancy and early childhood petitioner had been taken to various medical centers over the county, and his parents had spent all they could afford for their son.

Dr. James H. Kreimeyer, Clinical Director at Rusk State Hospital, called by the State, testified as to the results of the standardized intelligence test previously mentioned which had been administered to petitioner. He said results indicated petitioner was a dull normal and such score as made could be considered as reflecting a mild or questionable mental defectiveness. He testified that psychomotor epilepsy patients usually are not able to remember what occurred during the time they have seizures as they have amnesia for that period of time.

This was the medical testimony offered at the 1961 trial.

In the court's charge it submitted to the jury the issues of insanity at the time of the commission and insanity at the time of the trial (competency). The jury found the petitioner was sane at both times.

The record before us reflects that in 1964 appellant was found to be then insane by another jury on much the same evidence as offered at his 1961 trial plus evidence of deterioration since his confinement in the Department of Corrections. He was committed to Rusk State Hospital. Restoration proceedings were had in 1973, and appellant was returned to the Department of Corrections.

In Pate v. Robinson, supra, upon which the appellant relies, the United States Supreme Court made clear "that the conviction of an accused person while he is legally incompetent violates due process . . . and that state procedures must be adequate to protect this right." Pate held that the trial court should conduct a competency to stand trial hearing whenever "the evidence raises a 'bona fide doubt' as to a defendant's competence to stand trial. ² Under the holding of Pate, the lack of a hearing on competency to stand trial once the issue is properly raised affects the fact-finding process. Ex parte Halford, supra.

Therefore, the issue presented is whether there was sufficient evidence before the trial court in 1961 to raise a bona fide doubt as to petitioner's competence to stand trial.

In Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), the United States Supreme Court identified some of the factors which are relevant to a determination of competency to stand trial:

"The import of our decision in Pate v. Robinson is that evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but that even one of these factors standing alone may, in some circumstances,...