Ex parte Lewis

• Decision Date: 30 May 1979
• Docket Number: No. 60649,No. 2,60649,2
• Citation: 587 S.W.2d 697
• Parties: Ex parte Lester Ray LEWIS
• Court: Texas Court of Criminal Appeals

Page 697

587 S.W.2d 697

Ex parte Lester Ray LEWIS.

No. 60649.

Court of Criminal Appeals of Texas, Panel No. 2.

May 30, 1979.

Rehearing Denied Oct. 24, 1979.

Paul G. Ferguson, Huntsville, for appellant.

Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, ROBERTS and ODOM, JJ.

OPINION

ROBERTS, Judge.

This is a post-conviction application for habeas corpus relief. The judge of the convicting court held a hearing and made findings of fact and conclusions of law (including a conclusion that relief should be granted).

On November 3, 1977, the district court appointed an attorney to represent the applicant. On the same day, the applicant pleaded guilty to an information charging him with murder, and he was sentenced to confinement for a term from five years to life. The applicant did not appeal. Before (and at the time of) the trial, the district attorney had a copy of a letter from a psychiatrist to an attorney in Trinity County, who was not the attorney who represented the applicant at trial. (The petition alleged that the applicant originally was arrested and charged in Trinity County, but it was later determined that that was not the proper venue. We do not regard this unproved allegation as a fact; we merely mention it for clarification.) The attorney who represented the applicant at trial was not made aware, by the State or by any other source, of the existence of the psychiatrist's letter. We quote from the letter:

"Re: Psychiatric Examination of Lester Ray Lewis 34 Year Old White Male Seen in Groveton Jail September 22, 1977 on Court Order of District Judge Joe Ned Dean

"This man was seen and gave a reasonably coherent history of events leading up to his arrest and the incident involving the man he is charged with killing. He was quick to say the man had called him a homosexual and this had led to a fight which had resulted in the man he is charged with having killed (sic). He described the events of that date as being unavoidable because the man had threatened to kill him with a knife.

"Patient recalled that he attended public school in Huntsville, quit school in the fourth grade. He is not able to recall his age but he had a great deal of difficulty learning and apparently never learned to read or write. He was thought to be mentally retarded and on at least two occasions was sent to school for the mentally retarded. Although he did not himself discuss this it was learned from his attorney that he had also been in the State Hospital at Rusk on several occasions. He did admit to going to Rusk at least once after he attempted suicide several years ago but he denied being seen by the psychiatrist there.

"At interview this young man is considered to be in contact with reality. He is aware of the fact that he has been placed in jail and that it has something to do with the death of a man he was 'fighting with'. He does not appear to comprehend the seriousness of the crime that he has been charged with. * * * Patient is definitely paranoid and his paranoid ideas are exhibited in the fact that he feels that people are talking about him as being homosexual. He has hallucinatory experience a great deal of the time and his hallucinations involve people talking about him as being homosexual or threatening to harm him. * * *

"In my opinion this man has a schizophrenic reaction of the chronic undifferentiated type manifest by paranoid ideas, marked impairment to comprehend much of what is going on about him. There is some question that he may have been moderately intoxicated on the day in question but his reasoning today while sober would make his behavior quite understandable on the day in question without explaining his behavior as being intoxicated.

"There is some question that he might also have an organic brain syndrome since he does have 'black-out spells'. It would be nice if an EEG could be arranged unless he had one on a recent admission to the Rusk Hospital. It is doubtful that this man can be held accountable for his behavior and if he is to live outside an institution he will require treatment for his schizophrenic illness. He would require treatment but it is my opinion that he needs to be hospitalized in a psychiatric hospital such as the maximum security unit at Rusk at least for the time being."

The letter raises questions of the applicant's sanity at the time of the alleged offense, and of his competency to stand trial.

The applicant does not claim that the prosecutor willfully suppressed the letter, nor is it necessary for him so to claim, for the withholding of evidence favorable to the accused denies due process irrespective of the good faith or the bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). "It shall be the primary duty of all prosecuting attorneys . . . not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused." V.A.C.C.P., Article 2.01. "(T)here are situations in which evidence is obviously of such substantial value to the defense that elementary fairness requires it to be disclosed even without a specific request (from a defendant)." United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

The State argues that the non-disclosure of favorable information is important only in contested cases like Agurs. We cannot agree. The overriding concern is whether a defendant has been deprived of due process and due course of law. See Agurs, supra, at 108, 112, 96 S.Ct. 2392; Ransonette v. State, 550 S.W.2d 36, 40 (Tex.Cr.App.1977); Means v. State, 429 S.W.2d 490 (Tex.Cr.App.1968). The requirement of due process and due course of law extends to guilty pleas as well as to contested cases. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Ex parte Shuflin, 528 S.W.2d 610 (Tex.Cr.App.1975). The conviction of an accused person while he is legally incompetent violates due process and due course of law. Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956); Ex parte Hagans, 558 S.W.2d 457 (Tex.Cr.App.1977). The very arraignment and plea of an incompetent person is constitutionally invalid. See Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (dictum). Such a constitutional error is not waived by a defendant's silence. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). If anything, the denial of due process and due course of law would be greater than in a contested case if an incompetent defendant were permitted (as the applicant was) to waive such constitutional and statutory rights as an indictment, time to prepare for trial, the presumption of innocence, the compulsory production of witnesses, the confrontation and cross-examination of witnesses, trial by jury, the right not to be compelled to incriminate himself, time to move for a new trial, and an appeal. Therefore, we hold that, like exculpatory evidence, information about the incompetence of a defendant can be of such substantial value to the defense that elementary fairness requires it to be disclosed even without a specific request from the defendant. Accord, Ashley v. Texas, 319 F.2d 80 (5th Cir.), certiorari denied, 375 U.S. 931, 84 S.Ct. 331, 11 L.Ed.2d 263 (1963). Further, we hold that the prosecutor's duty to disclose favorable information (whether relating to the issue of competence, guilt, or punishment) extends to defendants who plead guilty as well as to those who plead not guilty.

The omission to disclose testimony that is favorable to a defendant must be evaluated in the context of the entire record. United States v. Agurs, supra. In this case, the information in the psychiatrist's letter contains strong indications that the applicant could have raised a defense of insanity. The letter also indicates that the issue of incompetence to stand trial should have been explored. We think that if the applicant's counsel had been aware of this letter he would not have agreed, on the first day he was appointed and without investigation, to a plea of guilty for a life sentence. The harm is clear.

The State argues that the prosecutor's duty to disclose extends only to favorable information unknown to the defense, and it points out that the applicant knew that he had seen a psychiatrist. It would be anomalous to hold that the (concededly) illiterate, mentally retarded, alcoholic, and (according to the psychiatrist) psychotic applicant had a duty to tell his counsel that there was available evidence of his insanity and incompetence.

The State offered evidence that the prosecutor's policy was to open his file to defense counsel whose clients were pleading guilty, and it seems to imply that the applicant's counsel alone was responsible for his ignorance of the psychiatrist's letter. There was no evidence that the policy was, in fact, applied in this case. The State has not...